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THE MYSTERY OF THE 
PINCKNEY DRAUGHT 



BY 

CHARLES C. NOTT 

FORMERLY 

Chief Justice of the United States Court of Claims 




NEW YORK 

THE CENTURY CO. 

1908 



i^;V 



LIBRARY of CONGRESS 
Two Copies Received 

NOV 20 \WB 

fc. ^ Copyright Entry _ 
CLASS O^JU^^^- 



^^^y^:J. < j 



Copyright, 1908, by 
The Century Co. 



Published, 'Novewiber, 1908, 






TO 

CEPHAS BRAINERD 

OP THE NEW YORK BAR 

A SOUND Lawyer and a long-tried Friend 



Sn-xC 



CONTENTS 

CHAPTER PAGE 

I. Statement of the Case .... 3 
II. The Draught in the State Depart- 
ment 16 

III. Of the Issue of Fraud .... 23 

IV. Madison as a Witness 29 

V. Madison as an Advocate .... 40 

VI. The Position Taken by Madison . 58 

VII. The Plagiarisms 65 

VIII. The Improbabilities 85 

IX. The Observations 105 

X. The Silence of Madison .... 143 
XI. The Wilson and Randolph 

Draughts 158 

XII. The Committee's Use of the 

Draught 206 

XIII. What Became of the Draught . . 225 

XIV. What Pinckney Did for the Con- 

stitution 243 

XV. Conclusions on the Whole Case . 257 
XVI. Of Pinckney Personally . . . 278 

Appendix 

Mr. Charles Pinckney 's Draught 

op a Federal Government . . . 295 
Draught of the Committee of De- 
tail 3^^ 

Index ^^^ 



THE MYSTEEY OP 
THE PINCKNEY DEAUGHT 



THE MYSTERY OF 
THE PINCKNEY DRAUGHT 

CHAPTEE I 

STATEMENT OF THE CASE 

WHEN I began the studies which have re- 
sulted in this book someone asked me 
what I was doing, and I chanced to answer that 
I was looking into the mystery of Pinckney's 
draught of the Constitution. Afterwards I 
received a letter from Professor J. Franklin 
Jameson in which he spoke of the uncertain- 
ties attending the draught as * ^ my steries ' ' ; 
and later I found that Jared Sparks, back in 
1831, had been engaged in the same study and 
had used the same term. With two such 
scholars as Professor Jameson and Mr. 
Sparks recognizing the knowable but unknown 
element which we call mystery, I retain the 
term which I chanced to use. 

'^A true mystery, instead of ending dis- 
cussion, calls for more.'' ''What constitutes 

3 



THE PINCKNEY DEAUGHT 

a mystery is the unknown which is certainly 
connected with the known. A mystery there- 
fore is unfinished knowledge. ' ' ^ 

At the opening of the Convention which 
framed the Constitution, Charles Pinckney of 
South Carolina presented a draught of a 
constitution that was referred to the Commit- 
tee of the Whole. This draught was not a 
subject of notice or comment by any speaker 
or writer of the time. One might infer from 
the silence of all records and writers that it 
was the fanciful scheme of an individual 
which exercised no influence whatever on the 
Convention and did not contribute a single 
line or sentence to the Constitution. 

On the adjournment of the Convention its 
records and papers were placed under seal 
and the obligation of secrecy was set upon its 
members. When ultimately the seals were 
broken and the package was opened, more 
than thirty years afterwards, the draught of 
Pinckney was not found. John Quincy 
Adams then Secretary of State applied to 
Pinckney for a copy; and he on the 30th of 

1 Dr. William Hanna Thomson, Brain and Personality, p. 
278. 

4 



STATEMENT OF THE CASE 

December 1818, sent to the Secretary of State 
the duplicate or copy of the draught now in 
the Department of State. The document was 
published and remained unquestioned until in 
1830, six years after the death of Pinckney, 
it came, or was brought, to the attention of 
Madison; and he at different times wrote to 
at least four persons concerning it and also 
prepared a statement which was subsequently 
published with it in Gilpin's edition of Madi- 
son's Journal, and in Elliot's Debates; and 
then the Pinckney draught slept unnoticed in 
constitutional publications until a review in 
the columns of the Nation awakened an in- 
terest in Mr. Worthington C. Ford and he in 
1895 published the letter which accompanied 
the draught when it was placed in the State 
Department. Nevertheless, if the copy in the 
Department is identical in terms, or substan- 
tially identical in terms, with the paper which 
Pinckney presented to the Convention, then 
Charles Pinckney contributed more of words 
and provisions to the Constitution of the 
United States than any other man. And this 
■ draught so prepared by him was so largely 
adopted in a silent way that the law student 

5 



THE PINCKNEY DRAUGHT 

who might chance to read it, not knowing of 
the comment of Madison and its rejection by 
all commentators, would be tempted to speak 
of the Constitution of the United States as the 
constitution of Pinckney. 

The reason why the Pinckney draught has 
received so little attention, and he has received 
no credit at all for what apparently is an ex- 
traordinary piece of constitutional work can 
be readily explained. 

The statement of Madison is written in tem- 
perate and guarded terms ; and it is manifest 
that he was careful to speak with courtesy of 
Pinckney and to furnish an explanation in the 
nature of a bridge over which the friends of 
Pinckney, then deceased, might retreat. But 
what he does say instantly brings the reader's 
mind to the conclusion that the paper in the 
State Department is not the paper — that it is 
not a substantial copy of the paper, which was 
before the Convention. Story had been ap- 
pointed by Madison and it was not for Story 
to accept what Madison rejected; and Story 
was so great a man, so great a judge and com- 
mentator, that it was not for lesser men to re- 
verse him. Madison's comment and Story's 

6 



\ 



STATEMENT OF THE CASE 

silence have united to condemn the draught so 
effectively that while printed and reprinted it 
has been as nnnoted as if it had never been 
written. The final, judicial edict of George 
Bancroft expressed the general judgment 
when he wrote of the original draught which 
was actually before the Convention, "No part 
of it was used, and no copy of it has been pre- 
served." 

Moreover Madison is too great an authority 
to be lightly questioned, the highest authority 
that exists concerning the proceedings of the 
Convention; and he asserts and undertakes 
to demonstrate that the one paper can not be 
a true copy of the other. He designates pro- 
visions which he says originated in the Con- 
vention and could not have been predeter- 
mined by Pinckney; and still more conclu- 
sively, as he thinks, he points to the fact that 
the paper in the Department contains provi- 
sions to which Pinckney was himself opposed, 
provisions against which he spoke and voted in 
the Convention. Here Madison builds his 
bridge. Mr. Pinckney, he suggests, furnished 
this copy many years after the event (nearly 
32 years), after he had become an old man and 

7 



THE PINCKNEY DEAUGHT 

the record of events had faded in his memory ; 
and probably as the work of the Convention 
went on he had used a copy of his draught as 
a memorandum and had interlined in it pro- 
visions which the Convention framed; and 
when he sent the copy to the Secretary of 
State he had forgotten this, or had gradually 
come to regard the interlined matter as his 
own. A writer like Story with the training of 
a lawyer and a judge on finding the authen- 
ticity of the copy impeached in part would be 
almost certain to exclude it wholly from the 
consideration of the jury. Historical analysis 
and research may, nevertheless, render that 
clear which is obscure and show us where the 
Work of Pinckney begins and ends. 

There are some extrinsic facts which hither- 
to unknown should be noted. 

In the first place this letter of Pinckney 
anticipates one of Madison's criticisms and 
explains away his strongest point. 

^^It may be necessary to remark,'' he says, 
*^that very soon after the Convention met 
I changed and avowed candidly the change 
of my opinion on giving the power to Con- 
gress to revise the State laws in certain cases, 

8 



SI'ATEMENT OF THE CASE 

and in giving tlie exclusive power to the Sen- 
ate to declare war, thinking it safest to re- 
fuse the first altogether and to vest the latter 
in Congress." Hunt's Madison, III, p. 22. 

As to one of these things concerning which 
Pinckney says he changed his mind after the 
Convention met, the power of Congress to re- 
vise the laws of the States, the assertion is not 
sustained by Madison's record of the proceed- 
ings. He undoubtedly did change his mind 
but not until after the adjournment of the 
Convention. There was however another pro- 
vision in his draught to which his assertion 
would apply. Concerning it he did change his 
mind and * * avowed candidly the change of his 
opinion" and did so '*very soon after the Con- 
vention met. ' ' This is the provision which de- 
clares that members of the lower house shall 
be chosen by the people of the several States. 
Article 3. As early as the 6th of June he pro- 
posed that they should be chosen by the legis- 
latures of the several States. Writing 32 
years after the event and when the record had 
faded in his memory, the two things, to use 
Madison's words, ''were not separated by his 
recollection. ' ' 

9 



THE PINCKNEY DRAUGHT 

The letter is a contemporaneous declaration, 
given at the moment when he produced the 
document and placed it on file in the Depart- 
ment of State, that the copy, like the original, 
contained provisions which he opposed in the 
Convention. With this contemporaneous no- 
tice to the Secretary of State one of Madi- 
son's objections which at first seemed insuper- 
able, if it does not fall to the ground, at least 
becomes susceptible of explanation; and the 
retention in the copy of the draught of these 
apparently inconsistent things, accompanied 
at the time, as they were, by Pinckney's dec- 
laration, not only removes the objection of 
Madison but tells strongly in favor of the 
draught being what Pinckney represented it 
to be. 

In the second place Pinckney speaks of 
having ^^ several rough draughts of the Con- 
stitution'' (^'4 or 5 draughts" he says) and he 
adds ^ ^ that they are all substantially the same, 
differing only in words and the arrangement 
of the articles." Pinckney had preserved 
them certainly until the end of the year 1818, 
and *' numerous notes and papers which he 
had retained relating to the Federal Conven- 

10 



STATEMENT OF THE CASE 

tion.'' He also says that ''with the aid of the 
journal of the Convention and the numerous 
notes and memorandums I have preserved, it 
would now be in my power to give a view of 
the almost insuperable difficulties the Conven- 
tion had to encounter, and of the conflicting 
opinions of the members; and I believe I 
should have attempted it had I not always 
understood Mr. Madison intended it. He 
alone possessed and retained more numerous 
and particular notes of their proceedings than 
myself." These ''numerous notes and memor- 
andums, more numerous and particular'' than 
those preserved by any other person, Madi- 
son "alone" excepted, and with them the "sev- 
eral rough draughts," which he found with the 
other papers on his return to Charleston in 
1818, existed when Pinckney wrote his letter 
and placed his copy of the draught in the 
State Department. They existed both to re- 
fresh his memory and to refute him if he was 
not acting in good faith. He acknowledged 
Madison to be his superior in "notes and mem- 
orandums" and a particular knowledge of the 
proceedings of the Convention; and Madison 
was still living, and Pinckney by placing his 

11 



THE PINCKNEY DE AUGHT 

copy of the draught in the State Department 
invited Madison and all the world to examine 
it. That was the time when Madison should 
have spoken. It is most unfortunate that he 
waited fourteen years, and until after Pinck- 
ney 's death and the death of every other mem- 
ber of the Convention, before he spoke. 

Like many another young lawyer I came 
upon Pinckney's draught in Elliot's Debates 
and was astounded by finding so large a part 
of the Constitution apparently written by the 
hand of a man whom I had never heard ex- 
tolled as a framer of the Constitution; and 
like many another young lawyer, I accepted the 
reasons of Madison and the silence of Story 
as conclusive. But the discovery and publica- 
tion of Pinckney's letter in 1895 threw new 
light upon the subject and made it plain that 
Madison's objections should not be taken as 
final and that his premises needed corrob- 
oration. I therefore prepared the following 
inquiries in the hope that I could persuade 
some historical scholar to take up this work 
of Constitutional investigation. 

1. Does the draught in the State Depart- 
ment upon its face appear to be an author's 

12 



STATEMENT OF THE CASE 

draught — a, ^^ rough draught/' as Pinckney 
called it — ^with his corrections, erasures, inter- 
lineations and alterations or does it appear to 
be a duplicate or a fair copy of an original or 
* ' rough ' ' draught I It is in the handwriting of 
Pinckney; does it appear to be his original 
piece of work, or an engrossed copy made by 
him of another paper? 

2. If upon the face of the instrument it ap- 
pears to be an engrossed copy, though in 
Pinckney 's handwriting, that is a copy of the 
rough draught with its alterations and cor- 
rections engrossed therein, then the historical 
critic must proceed to try the issue of Pinck- 
ney 's truthfulness. He tells the Secretary of 
State at the time when he produces the paper 
that '4t is impossible for me now to say which 
of the 4 or 5 draughts I have is the one. 
But enclosed I send you the one I believe was 
it. I repeat, however, that they are substan- 
tially the same, differing only in form and un- 
essentials." If this language be taken liter- 
ally it means that he is about to place in the 
archives of the Department of State one of 
those ^^ original" ^^4 or 5 draughts'' and as he 
believes the very one of which he prepared an 

13 



THE PINCKNEY DSAUGHT 

engrossed copy for the use of the Convention. 
If the language be not taken literally, it at 
least means that he sends a true copy of one of 
the original rough draughts. Is there any- 
thing in the draught to refute either repre- 
sentation? Does it contain words, phrases, 
clauses, provisions which certainly did originate 
in the Convention; which were ground out 
there, and which could not possibly have been 
anticipated by Pinckney as he sat in his study 
early in 1787 making draught after draught 
for the consideration of the coming Con- 
vention ? 

3. Finally, it will be apparent on reflection 
that even if all of the foregoing issues should be 
decided against Pinckney; that is to say, if it 
should be found that the paper in the State De- 
partment is not an original draught — is not 
one of the four or ^ve draughts to which Pinck- 
ney alludes, or that it contains interlineations 
of which Pinckney could not have been the 
author, even then after deciding all doubtful 
points against him a great deal will remain 
which must have been his ; and historical criti- 
cism and careful analysis will be able to meas- 
ure this residuum and give us a fair estimate 

14 



STATEMENT OF THE CASE 

of its value, so that we can know with tolera- 
ble certainty how mucli of the Constitution 
was the work of Pinckney. 

As I have not been able to persuade any 
competent scholar to take up this inquiry 
which seems to me to be an inquiry due to the 
truthfulness of our Constitutional history and 
to the memory of a framer of the Constitu- 
tion whose work was not questioned until after 
his death, I have felt that the work has become 
a duty and that the duty has been imposed 
on me. 



15 



CHAPTEE II 

THE DRAUGHT IN THE STATE DEPARTMENT 

THE Pinckney draught in the Department 
of State is written on unrnled paper lar- 
ger than common foolscap, hand made, and 
with nntrimmed edges. The interlineations 
are few and trivial and clerical, the insertion 
of an omitted word and the like. There are 
two exceptions to this. In article 3 the 
draught says, '^The Honse of Delegates shall 

consist of to be chosen from the different 

States in the following proportions : For New 

Hampshire for Massachusetts — ' — " etc., 

etc. But the names of the States are not set 
forth in the body of the instrument as they 
stand in all editions, being written on the mar- 
gin and the place where they should have been 
inserted being noted by a mark. 

The second exception is in the last line of 
article 5. The subject of the paragraph is the 
veto power; and the clause ''all bills sent to 
the President and not returned by him within 

16 



THE DEAUGHT IN THE DEPAETMENT 

■ days shall be Laws, unless tlie legisla- 
ture, by their adjournment, prevent their re- 
turn" was originally written, ** unless the leg- 
islature by their adjournment prevent its 
return, in which case it shall not be the law." 
The words *4ts" and ^4t" are erased with 
the pen and the words *^ their" and ^^they" 
written over them and the article ^^a" and a 
final ^^s" are stricken out so that the clause as 
corrected reads as printed. 

In at least two particulars the draught is 
erroneously printed in almost all editions. 
Pinckney did not write ''Art. 1," ''Art II," 
etc. Above the first article of the draught in 
the middle of the line, is written "Article 1." 
Over all the other articles, and likewise in 
the middle of the line, are simply the arable 
figures "2," "3," "4," etc., without the word 
"article." The second particular, in which 
many printed copies are erroneous, is in ar- 
ticle 3. The printer has there run together 
two parts of distinct sentences. The true 
reading is that each member of the House of 
Delegates shall be "a resident in the State he 
is chosen for," the sentence closing with the 
word "for." A new sentence then begins: 

17 



THE PINCKNEY DRAUGHT 

*^ Until a census of the people shall be taken 
in the manner hereinafter mentioned, the 

House of Delegates shall consist of to be 

chosen from the different States in the follow- 
ing proportions,'' etc. But in some we find 
that a delegate shall be **a resident of the 
State he is chosen for until a census of the 
people shall be taken in the manner herein- 
after mentioned," which makes the intended 
provision senseless. 

The first of the foregoing inquiries (p. 12 
ante). Does the draught in the State Depart- 
ment upon its face appear to be an author's 
draught, a rough draught with his corrections, 
erasures, interlineations and alterations, or 
does it appear to be an engrossed copy made 
by him of another paper, has been answered 
decisively by Mr. Gaillard Hunt in his edition 
of the Writings of Madison: 

'^The penmanship of all three papers (the 
draught and the letter to the Secretary of 
State and a previous letter to the Secretary 
December 8, 1818) is contemporaneous, and 
the letter of December 30 and the draught were 
written with the same pen and ink. This may 
possibly admit of a difference of opinion be- 

18 



THE DEAUGHT IN THE DEPARTMENT 

cause the draught is in a somewhat larger chi- 
rography than the letter, having been, as befit- 
ted its importance, written more carefully. 
But the letter and the draught are written 
upon the same paper, and this paper was not 
made when the Convention sat in 1787. There 
are several sheets of the draught and one of 
the letter, and all bear the same watermark, 
^Russell and Co. 1798.' " Vol. Ill, p. 16. 

The draught, as before shown, contains a 
few verbal corrections, one or two trivial eras- 
ures, two or three obviously necessary inter- 
lineations but no alteration. That is to say it 
contains no alteration of substance — ^nothing 
which indicates on the part of the writer an 
intent to change or add to the substance of 
what he has written— there is no additional 
provision interlined, no obscure expression 
amplified, no omitted thought supplied— the 
corrections are one and all clerical. The doc- 
ument, therefore upon its face does not appear 
to be a ''rough draught." 

When the Secretary of State had written to 
Pinckney ''I now take the liberty of address- 
ing you, to inquire if you have a copy of the 
Draught proposed by you, and if you can with- 

19 



THE PINCKNEY DEAUGHT 

out inconvenience furnish me at an early day, 
with a copy of iV^ and Pinckney replied that 
among his notes and papers he had * 'found 
several ronght draughts of the Constitution" 
and that ^'I send you the one I believe was it,'* 
and with the letter sent a document which ob- 
viously was not a rough draught, the fair and 
reasonable interpretation of his language 
(apart from an intent to defraud) is that he 
was sending what the Secretary of State had 
asked for, viz., ''a copy'' of the ''copy of the 
draught proposed by you" to the Convention; 
and that what he meant to say was, "I send 
you 'a fair copy made by myself of the one I 
believe was it. ' ' 

What a rough draught is may be seen by re- 
ferring to the literal reprint of the Journal of 
Madison in the Documentary History of the 
Constitution by the Department of State. It 
is something which requires an editor to put 
the author's changes and amendments in their 
proper places. A constructive piece of work 
as long as the Pinckney draught, must have 
been cut, transposed, changed, added to over 
and over again. To be intelligible it would 

20 



THE DRAUGHT IN THE DEPARTMENT 

require editing, and the Secretary had in- 
formed Pinckney that he wanted the ''copy" 
for publication, and that he wanted it ''at an 
early day": and no man would have parted 
with such an important paper and confided the 
editing of it to some unknown clerk in an exec- 
utive department. In a word Pinckney did 
what any man similarly circumstanced would 
have done, he kept the original paper in his 
possession, and sent to the Secretary of State 
what he had asked for, ' ' a copy of it. ' ' 

If we turn now to the printed copy of the 
draught and note the extent of article 6, con- 
taining the enumeration of the powers of Con- 
gress, and the extent of the second paragraph 
of article 8, setting forth the powers and du- 
ties of the President, and if we remember that 
all this matter is to be found in the Constitu- 
tion, it becomes instantly apparent that 
absorption of all these provisions by inter- 
lineation as suggested by Madison was abso- 
lutely impossible. In a word the bridge which 
Madison built breaks down. Therefore we 
must face the inexorable alternative: either 
Pinckney gave to the Convention a draught 

21 



THE PINCKNEY DRAUGHT 

substantially like that in tlie State Depart- 
ment or he fraudulently fabricated that 
draught after the Secretary of State had 
called upon him for a copy. 



22 




CHAPTER III 

OF THE ISSUE OF FKAUD 

^N this issue of fraud we must first look 
at the circumstances as they existed in 
December, 1818. 

Pinckney had been a Senator of the United 
States, Governor of South Carolina, Minister 
to Spain and had just been elected to the 
important Congress which was to grapple 
with the National questions involved in the 
Missouri Compromise. He may have been a 
vain man as Madison thought him — (most 
men of great ability and prominence are ego- 
tistical; it is egotism ordinarily which impels 
them to the front) but no one has intimated 
that Pinckney could have been guilty of an act 
which from moral and historical points of view 
was little better than a crime. Some one con- 
tributed the many provisions which are to be 
found in the Constitution, and it would have 
been infamous to filch the honor from the real 
author. The most felicitous sentence in the 

23 



THE PINCKNEY DRAUGHT 

Constitution, '^The citizens of each State shall 
be entitled to all privileges and immunities of 
citizens in the several States, " if it was Pinck- 
ney's, passed through the Committee of De- 
tail, the Committee of Style and the Conven- 
tion without the change of a single word. It 
was one of those rare sentences of which 
everybody approved; and it is not lightly to 
be assumed that in 1818 Pinckney would steal 
such a conspicuous sentence from the Consti- 
tution and place it at the head of one of his 
own articles. 

Moreover if the draught was a tissue of 
fraud detection was always possible; and de- 
tection would have blasted the life of Pinckney 
nowhere with greater severity than in his own 
State. In 1818 sixteen other members of the 
Convention were still living, and three of them 
had been members of the Committee of Style, 
and two of them (Charles Cotesworth Pinck- 
ney and Pierce Butler), had been delegates 
from South Carolina. Letters too from mem- 
bers might disclose the fatal truth. A son 
of some member might come forward with his 
father's draught of some of these provisions. 
Autobiographies, diaries and personal remin- 

24 



THE ISSUE OF FEAUD 

iscences of members might exist. Detection 
was possible, and in the ordinary course of 
human events, certain. Conversely it is 
proper here to note the fact that in all these 
years not a line of writing has been found to 
thrown a shade of discredit upon the Pinckney 
draught. 

The temptation, too, was relatively small. 
The Constitution was not then in the estima- 
tion of the American people what it is now. 
No one then had proclaimed it to be *Hhe 
greatest work ever thrown off by the brain 
and purpose of man.'' In 1818 the first work 
on the Constitution (Eawle's) had not yet been 
written. Monroe was President, and the 
country was just emerging from the poverty 
which followed the war of 1812-15. Pennsyl- 
vania and Georgia had defied the federal 
/ power and the latter had passed a statute mak- 
^ ing it a crime punishable with death to en- 
/ force the process of the Supreme Court of the 
I United States. State feeling was always 
stronger in the South than in the North and 
out of State feeling had grown the doctrine of 
State rights. The South at that time could 
cherish no warm regard for the man who had 

25 



THE PINCKNEY DRAUGHT 

first written ^^all acts made by the legislature 
of the United States, pursuant to this Consti- 
tution, and all treaties made under the au- 
thority of the United States shall be the su- 
preme law of the land." 

It must also be noted that Pinckney was not 
a volunteer in this matter — that he did not 
thrust his draught upon the Secretary of State 
— that he never came before the public claim- 
ing to have contributed this or anything to 
the Constitution. The subject was introduced 
by Mr. Adams and not by Pinckney; and the 
draught was produced in response to Mr. 
Adams' inquiries concerning it. Pinckney 
showed no great solicitude about it then. His 
letter is slovenly and careless and manifestly 
not written for posterity, and it contains no 
indication of his regarding it as any thing 
more than a personal explanation. It was due 
to Mr. Adams to tell him that this draught 
which he inclosed was not a literal duplicate 
of the one which he had placed before the 
Convention; and it was due to himself to say 
that it contained provisions of which he had 
subsequently disapproved and which he had 
opposed in the Convention. Pinckney cer- 

26 



THE ISSUE OF FRAUD 

tainly did not suppose that lie was writing 
history or biography when he wrote that 
letter. 

The letter demonstrates how inadequately 
Pinckney estimated the greatness of the Con- 
stitution and overestimated his own part in 
the work, and how poorly the Constitution was 
then esteemed. At the beginning it had been 
but an experiment and in the opinion of many 
men an experiment that would fail. Under 
the moulding hands of Jay and Marshall it 
had become to Southern statesmen more and 
more an object of distrust and dislike. It 
seemed then a growing menace to the rights of 
the South and the sovereignty of South Car- 
olina. For Pinckney to have asserted pub- 
licly that he was the chief author of the instru- 
ment and of its most offensive provisions 
would have inclined his fellow citizens in 
Charleston to say that instead of boasting 
of his work he ought to be ashamed of it ; that 
where State rights were involved it was at 
best ambiguous ; and that, if he was the author 
of the draught, he more than any other man 
had enabled the judges to interpret the Con- 
/ stitution in favor of Federal supremacy. 

27 



THE PINCKNEY DRAUGHT 

Certainly if this issue of fraud had been 
involved in a criminal case Pinckney would 
have been able to establish two things — good 
character, and the absence of a motive to de- 
fraud. 



28 



CHAPTER IV 

MADISON AS A WITNESS 

HAVING now seen what Pinckney said in 
1818 and what he did and where he 
stood, let ns turn to the other party in the 
controversy, Madison, and examine the testi- 
mony which he gave and the evidence on which 
he relied. 

His journal (as edited by Gilpin) after set- 
ting forth the speech of Randolph on the 29th 
oaj'^May, and the reference of the 15 resolutions 
of the Virginia delegates, to the Committee of 
the Whole, contains this record : 

'^Mr. Charles Pinckney laid before the 
house a draught of a federal government to 
be agreed upon between the free and inde- 
pendent states of America.'' 

''Ordered that the same be referred to the 
Committee of the Whole appointed to con- 
sider the state of the American Union.'' 

But Yates's Minutes give us one thing 
more: '' Mr. Pinckney, a member from South 

29 



THE PINCKNEY DEAUGHT 

Carolina, then added that lie had reduced his 
ideas of a new government to a system, which 
he then read.'' 

Madison's report of Pinckney's speech on 
the 25th of June stops with the subject of 
State governments and the propriety of hav- 
ing but one general system. But Yates gives 
in a condensed form the conclusion of Pinck- 
ney's speech and contains the following sen- 
tences : 

'^I am led to form the second branch (of the 
legislature) diiferently from the report. I 
have considered the subject with great atten- 
tion and I propose this plan (reads it) and if 
no better plan is proposed I will then move its 
adoption." 

Once while reflecting upon the extraordi- 
nary, the seemingly inexplicable course which 
Madison pursued in relation to the Pinckney 
draught — ^positive and yet evasive; alleging 
but never testifying — my eye happened to 
fall on this minute of Yates and it suggested 
the fact of these repeated omissions of Mad- 
ison's to state the contents of the Pinckney 
draught, and I asked myself the question, is 
it possible that Madison never knew what the 

30 



MADISON AS A WITNESS 
draught contained? In an examination of the 
facts relating to this question I found that 
the entry in the journal, above quoted, ''Mr. 
Charles Pinckney laid before the house a 
draught'' etc. had been taken word for word 
from the entry of the Secretary of the Con- 
vention in the official Journal. I found also 
that at four different times in the course of the 
debates Madison designated the draught by 
four different terms; as Mr. Pinckney 's 
''plan" as Mr. Pinckney 's "resolutions" as 
Mr. Pinckney 's "motion" as Mr. Pinckney 's 
"propositions," not one of which expressed 
the idea of a formulated Constitution. It is 
therefore evident that Madison did not hear 
Pinckney read his draught as Yates did, and 
did not hear him say as Yates did, "that he 
had reduced his ideas of a new government to 
a system." My inference then was and still is, 
that Madison was temporarily absent from the 
hall when Pinckney produced and read his 
draught and that on hearing of it he went to 
the Secretary's desk and copied the entry in 
the official journal — an entry which is also si- 
lent as to Pinckney having read the draught 
and which describes it in language entirely 

31 



THE PINCKNEY DRAUGHT 

different from Yates's and entirely different 
from Pinckney's, for Pinckney's draught does 
not profess to be an agreement ** between the 
free and independent States of America," 
bnt is avowedly an act of the people of the 
United States. It therefore appears both 
positively and negatively that Madison was 
not present when Pinckney presented his 
draught ; that he could not have heard Pinck- 
ney 's designation of it as a ^^ system" and 
could not have heard Pinckney read it to the 
Convention. He regrets in another place that 
he did not take a copy of it because of its 
length and it may be inferred from what may 
be termed his unfailing ignorance of its con- 
tents that he did not read it because of its 
length. 

Madison had a poor opinion of Pinckney, a 
very poor opinion; and he held fast to it all 
through his life. During the sitting of the 
Convention the draught was referred to re- 
peatedly in discussions and motions and ref- 
erences. Madison recorded what was said, 
and the more important of the motions and 
references, but his opinion of Pinckney was 
so poor that he did not put himself to the 

32 



MADISON AS A WITNESS 

trouble of stepping to the Secretary's desk and 
reading the draught, much less of taking a 
copy of it. In October 1787, after the disso- 
lution of the Convention, he wrote from New 
York to Washington and Jefferson, the follow- 
ing letters: 

James Madison to General Washington. 
New York, Octr. 14, 1787. 

**I add to it a pamphlet which Mr. Pinck- 
ney has submitted to the public, or rather 
as he professes, to the perusal of his friends, 
and a printed sheet containing his ideas on a 
very delicate subject, too delicate in my opin- 
ion to have been properly confided to the 
press. He conceives that his precautions 
against any further circulation of the piece 
than he himself authorizes, are so effectual 
as to justify the step. I wish he may not be 
disappointed. In communicating a copy to 
you, I fulfill his wishes only." 

(Gaillard Hunt's Writings of Madison, Vol. 

v., p. 9.) 

Madison to Jefferson. 

New York, Octr. 24, 1787. 



33 



THE PINCKNEY DRAUGHT 

^^To these papers I add a speech of Mr. C. 
P. on the Mississippi business. It is printed 
under precautions of secrecy, but surely could 
not have been properly exposed to so much 
risk of publication." 

(Id., p. 39.) 

Madison to General Washington. 

New York, Oct. 28, 1787. 
• ••«... 

**Mr. Charles Pinckney's character is, as 
you observe well marked by the publications 
which I enclosed. His printing the secret pa- 
per at this time could have no motive but the 
appetite for expected praise; for the subject 
to which it relates has been dormant a consid- 
erable time, and seems likely to remain so.'' 

(Id., p. 43.) 

In the memorandum ^^For Mr. Paulding" 
written shortly before April 6, 1831, reap- 
pears Madison's poor opinion of Pinckney. 
^^It has occurred to me that a copy (of the 
Observations) may be attainable at the print- 
ing office, if still kept up, or in some of the 
libraries or historical collections in the city. 
When you can snatch a moment, in your walks 
with other views, for a call at such places, you 

34 



MADISON AS A WITNESS 
will promote an object of some little interest 
as well as delicacy by ^ascertaining whether 
the article in question can be met with." 

On the 25th of November, 1831, he wrote to 
Jared Sparks, ^^I lodged in the same house 
with him, and he was fond of conversing on 
the subject. As you will have less occasion 
than you expected to speak of the Convention 
of 1787, may it not be best to say nothing of 
this delicate topic relating to Mr. Pinckney, 
on which you cannot use all the lights that 
exist and that may be added?" 

On the 6th of January, 1834, he wrote to 
Thomas S. Grimke: 

*' There are a number of other points in the 
published draught, some conforming most 
literally to the adopted Constitution, which, it 
is ascertainable, could not have been the same 
in the draught laid before the Convention. 
The conformity, and even identity of the 
draught in the Journal, with the adopted Con- 
stitution, on points and details the results of 
conflicts and compromises of opinion apparent 
in the Journal, have excited an embarrassing 
curiosity often expressed to myself or in my 
presence. The subject is in several respects 

35 



THE PINCKNEY DRAUGHT 

a delicate one ; and it is my wish that what is 
now said of it may be understood as yielded to 
your earnest request, and as entirely confined 
to yourself. I knew Mr. Pinckney well, and 
was always on a footing of friendship with 
him. But this consideration ought not to 
weigh against justice to others, as well as 
against truth on a subject like that of the Con- 
stitution of the United States.'' 

And on the 5th of June, 1835, he wrote to 
William A. Duer: 

*^I have marked this letter ^confidential,' 
and wish it to be considered for yourself only. 
In my present condition enfeebled by age and 
crippled by disease, I may well be excused for 
wishing not to be in any way brought to public 
view on subjects involving considerations of a 
delicate nature." 

Madison wrote with characteristic caution 
and courtesy but there is something very sug- 
gestive in the way he uses the word ''deli- 
cate." Neither Mr. Paulding nor Mr. Sparks 
nor Mr. Grimke nor Judge Duer could have 
doubted that there was something wrong in 
the draught — something so wrong that Madi- 
son did not wish to speak of it. 

36 



MADISON AS A WITNESS 

It is manifest that when Madison first read 
the draught in the State Department, he was 
surprised. He does not say so, and is very 
guarded in what he does say; yet it is per- 
fectly plain that the magnitude of this con- 
tribution to the Constitution was something 
absolutely new to him. He better than any 
^ pther man was supposed to know, the work 
and workings of the Convention, and lo, here 
was a document of more importance than any 
' given in his journal, or found among the rec- 
/ ords of the Convention, and of its contents he 
' had been ignorant until the document was laid 
before the world by the State Department ! 

Between 1818 and 1836, the magnitude of 
this and its importance as an historical docu- 
ment was forced upon Madison's attention 
from time to time by younger men who took 
a warmer interest in the Constitution and its 
history and its framers than their fathers had 
taken; and it is apparent that he was as- 
tounded at the historical importance of the 
document. Marshall was then drawing near 
to the end of his majestic judicial reign, and 
though assailed and thwarted by the cavilings 
and dissents of lesser men^ had placed his im- 

37 



THE PINCKNEY DEAUGHT 

perishable impress iipoii the Constitution and 
revealed to his countrymen its greatness and 
consistency and power of nationality. The 
growing interest in the great instrument 
would not be quieted. Madison would fain have 
kept silent, as he advised his two most trusted 
correspondents to do. But he could not ! He 
[ was the greatest of authorities, living or dead, 
' in all that pertained to the making of the 
Constitution; the last living member of the 
Convention ; the sole_ chronicler of its secret 
history. It is as plain now as it was then that 
he must speak. What could he say? 

Madison was not able to say, ''I read the 
Pinckney draught when it was before the Con- 
vention, I studied it, I knew the contents well ; 
the paper in the State Department is not a 
substantial duplicate of that paper." There 
remained then but this alternative; he must 
confess that he knew no more about the Pinck- 
ney draught than did the men who were in- 
terrogating him or he must do precisely what 
he did do, he must attack it on documentary 
evidence as an advocate, and must remain si- 
lent as a witness. If he had testified as a wit- 
ness ; if he had said of his own knowledge that 

38 



MADISON AS A WITNESS 

the paper which Pinckney placed in the State 
Department was not a copy of the paper 
which he had laid before the Convention and 
was not a substantial duplicate worthy of con- 
sideration, that would have been the end of the 
matter. Certainly I should never have felt 
called upon to make the present investigation. 
But Madison did not so testify. Under the 
pressure of steadily increasing interest in the 
Constitution, inquirer after inquirer came to 
him to explain how a man whom they did not 
regard as a wise statesman could have con- 
tributed so much to the Constitution, which 
they had regarded as the composite work of 
a number of great men. They did not come 
to him for reasons or advice or references to 
documentary evidence, but because he was the 
one survivor of the men who could have testi- 
fied, the only chronicler of what had happened 
in the Convention from first to last, and they 
sought his personal knowledge. They asked 
him to tell them what he knew concerning the 
Pinckney draught, the original draught, the 
one which was before the Convention; and he 
answered not a word ! We must reject Madi- 
son as a witness because he rejected himself. 

39 



CHAPTER V 

MADISON AS AN ADVOCATE 

AT this day Madison is regarded as one 
of the chief statesmen in the group of 
leading framers of the Constitution; bnt his 
best appreciated work was his keeping the only 
record which we have of that august assembly. 
He, who dealt with the great questions of the 
hour, may not have been aware how much 
good work the Pinckney draught was doing in 
an unnoticed way. Madison spared no ef- 
fort to make his journal complete, and no lit- 
tle time in doing so. He copied and inserted 
in it the Virginia resolutions and the New 
Jersey resolutions; and he also inserted 
Pinckney ^s long speech of the 25th of June; 
and yet he did not procure and apparently did 
not even read and certainly did not insert in 
his journal Pinckney 's plan or draught. He 
seems to have felt sadly a certain self -convic- 
tion of this, and to have realized the fact that 

40 



MADISON AS AN ADVOCATE 
the omission of the Pinckney draught from his 
record was an irretrievable error. To a man 
holding the author of the draught in con- 
tempt, it must have seemed preposterous in 
1831 for the shade of Pinckney to stalk upon 
the historic stage and say, I formulated the 
Constitution. It was my hand that sketched 
its outline, leaving it to the members of the 
Convention, myself among the number, to 
.change its provisions and modify its terms. 
My draught was changed and modified, and 
the conflicting views of the framers were 
welded together by notable compromises and 
persuasive arguments, but nevertheless I con- 
tributed more of form and substance, more of 
detail and language to the instrument known 
as the Constitution of the United States than 
any other man. 

Accordingly, Madison, while he closed his 
lips as a witness, rallied his failing forces as 
an advocate and proceeded to give from time 
to time first to one correspondent and then to 
another and finally to the people of the United 
States, in a '^Note" to accompany his Journal 
when published, all the reasons he could mar- 
shal from the written record of the case why 

41 



THE PINCKNEY DE AUGHT 

the draught in the State Department was an 
impossible verity. 

At what time the Pinckney draught was first 
brought to Madison's attention I have not 
been able to discover; but on the 5th of May, 
1830, Mr. Jared Sparks had been spoken or 
written to on the subject, for he then replied 
to Madison, writing from Washington, ^ * Since 
my return I have conversed with Mr. Adams 
concerning Charles Pinckney 's draught of a 
constitution. He says it was furnished by 
Mr. Pinckney.'' Among Madison's papers 
there is also a memorandum entitled, for Mr. 
Paulding in which he says: 

*^Much curiosity and some comment have 
been exerted by the marvellous identities in 
a plan of government proposed by Charles 
Pinckney in the convention of 1787, as pub- 
lished in the Journals with the text of the 
constitution, as finally agreed to." 

This memorandum is not dated, but is 
placed chronologically before a letter to Mr. 
J. K. Paulding dated April, 1831. 

On the 21st of June, 1831, he wrote to Jared 
Sparks : ^ ^ May I ask you to let me know the 
result of your correspondence with Charles- 

42 



MADISON AS AN ADVOCATE 
ton on the subject of Mr. Pinckney's draught 
of a Constitution for the United States as 
soon as it is ascertained?'' 

On the 27th of June, he again wrote to Mr. 
Paulding saying that he has '^received the 
volume of pamphlets containing that of Mr. 
Charles Pinckney." 

On the 25th of November, 1831, he again 
wrote to Mr. Sparks: ^'The simple question 
is whether the draught sent by Mr. Pinckney 
to Mr. Adams and printed in the Journal of 
the Convention could be the same with that 
presented by him to the Convention on the 
29th May, 1787, and I regret to say that the 
evidence that that urns not the case is irre- 
sistible/' He instances the election of mem- 
bers of Congress by the people, and the de- 
bate of Jime 6 as ''a sufficient example." 
''But what decides the point" is a letter 
''from him to me" dated March 28, 1789— a 
letter quoted by Gilpin of which I shall here- 
after speak. 

Madison is guarded in all he says, but it is 
perfectly plain that while he wished to im- 
press upon Paulding and Sparks the idea that 
the draught which Pinckney placed in the 

43 



THE PINCKNEY DRAUGHT 

State Department was not the dranglit wMch 
he presented to the Convention, he at the same 
time shrank from bringing on a controversy 
and from irritating the friends of Pinckney 
and forcing them into an investigation of the 
matter. It was, he evidently thought, a case of 
^' least said, soonest mended." Madison was 
a sagacious and an experienced statesman 
who thoroughly understood his countrymen; 
Paulding and Sparks were his friends and 
followers ; what he wished to have said passed 
into Gilpin's edition of the Journal and El- 
liot's Debates, and gave the unquestioning 
world what he wished it to know and nothing 
more. The bridge which he built was safely 
passed over by the friends of Pinckney and 
his method of destroying the good name of 
the draught without needlessly smirching the 
good name of Pinckney, and without inciting 
a controversy on the subject has been so suc- 
cessful that for seventy years the draught has 
remained silently condemned, and no man has 
even thought that an investigation could pos- 
sibly reverse the accepted judgment. 

But on the 25th of April 1835, William A. 
Duer of New York wrote to Madison on the 

44 



MADISON AS AN ADVOCATE 
same subject and making the same inquiry. 
Judge Duer was an eminent and brilliant 
member of the New York bar and was then 
President of Columbia College and had been 
a well known judge. For three years the 
ghost of Pinckney had not been raised to dis- 
turb the serenity of Madison's old age. 
Paulding and Sparks were his friends and 
were publicists. To them he could say little 
which would mean much; and for them his 
wishes and suggestions would be as binding 
as a law. Judge Duer was not such a per- 
sonal friend and to him Madison must speak 
more freely ; he was the possessor of a strong 
inquiring mind, and to him, Madison must so 
strongly state the case that it would seem un- 
questionable. He therefore, with characteris- 
tic caution lingered until the 5th of June, and 
then in his reply to Judge Duer made a su- 
preme, if not final effort. 

In this letter, he brings up again, the elec- 
tion of members by ''the people" and Pinck- 
ney 's speech against it on the 6th of June. 
''Other discrepancies," he says, "will be found 
in a source also within your reach, a pamphlet 
published by Mr. Pinckney soon after the close 

45 



THE PINCKNEY DEAUGHT 

of the Convention" (Pinckney's Observa- 
tions). '^A friend wlio has examined and 
compared the two documents has pointed ont 
the discrepancies noted below." ^^One con- 
jecture explaining the phenomenon has been 
that Mr. Pinckney interwove with the draught 
sent to Mr. Adams passages as agreed to in 
the Convention in the progress of the work 
and which after a lapse of more than thirty 
years were not separated by his recollection." 
The ^^discrepancies noted below" are for 
the most part unimportant; and will be ex- 
amined hereafter; but there is one which 
should be considered now, for it affects Madi- 
son more than it affects Pinckney. The dis- 
crepancy referred to is this : In the Observa- 
tions Pinckney says that, ^4n the best in- 
stituted Legislatures of the States we find 
not only two branches [of the legislature] but 
in some ^ ^ a council of revision ' ' ; and he adds 
that he has incorporated this ^^as a part of 
the system." The friend says ^^The pam- 
phlet refers to the following provisions which 
are not found in the plan furnished to Mr. 
Adams as forming a part of the plan pre- 
sented to the Convention: The executive 

46 



MADISON AS AN ADVOCATE 
term of service 7 years. 2. A council of re- 



vision. ' ' 



The statesmen who framed the Constitution 
were snfficiently statesmen to know that what 
we call the veto power is not really a veto 
power; and that the President, nnlike the 
Crown, is not a part of the law-making power. 
The constitution of New York and not the 
constitution of Great Britain furnished the 
framers with the needed model. By all of 
them it was known that the duty imposed and 
intended to be imposed upon the President 
was simply a duty of ^^ revision." This has 
been a subject of judicial inquiry and the his- 
tory of the veto provision may be stated in 
the words of the court : 

'^At an early day, June 6, this question of 
legislative power was determined by two de- 
cisive votes. The Convention adopted the 
principle of revision, but being mindful, as 
Eutledge afterwards said, that ' the judges 
ought never to give their opinion on a law, 
till it comes before them,' and that they ' of 
all men are the most unfit to be concerned in 
the Eevisionary Council,' struck out Ean- 

47 



THE PINCKNEY DEAUGHT 

dolph's ' convenient number of the national 
judiciary' and left the power of revision in 
the President alone. At a later day, August 
6th, Entledge 'delivered in the Eeport of the 
Committee of Detail,' the committee which 
embodied the previously ascertained views of 
the Convention in a draught of the proposed 
Constitution. This section was couched in 
the very words of the constitution of New 
York: Every bill shall be presented to the 
President 'for his revision'; 4f upon such 
revision' he approve it, he shall sign it; 4f 
upon such revision it shall appear to him im- 
proper for being passed into a law,' he shall 
return it. On the 15th of August, with this 
word revision three times repeated, 'The 
thirteenth section of article 6, as amended, 
was then agreed to' by all the States. It is 
this vote which is expressive of the final intent 
of the Convention. The verbal form in which 
the provision stands in the Constitution was 
the work of the Committee of Style. 

''This 'revisionary business,' as Madison 
calls it, came up again and again ; appears and 
reappears in his Journal from the 6th of June 
to the 16th of August ; was considered and re- 

48 



MADISON AS AN ADVOCATE 

considered, discussed and rediscnssed. The 
views of members swung between the ex- 
tremes of absolute affirmative power in Con- 
gress and absolute negative power in the 
President. The proposition of Hamilton Ho 
give the Executive an absolute negative on the 
laws, identical with the legislative power of 
the Crown, was rejected by ten States and 
supported by none. The proposition of Madi- 
son to add the judges of the Supreme Court in 
the H^evision' of bills was likewise rejected. 
At last the deliberations ended where they had 
begun. The Convention held fast to the prin- 
ciple of a Council of Eevision and left the du- 
ties of the council in the President alone. He 
was to be the Council of Eevision. In the 
words of Madison, the Convention 'gave the 
Executive alone, without the judiciary, the re- 
visionary control on the laws, unless over- 
ruled by two-thirds of each branch.' " The 
United States v. Weil (29 Court of Claims Ee- 
ports 523; affirmed in La Abra Co, v. The 
United States, 175 U. S. E. 423. 

Madison forgot that on the 6th of June 
South Carolina had voted ^^no" on the motion, 

49 



THE PINCKNEY DRAUGHT 

to make * ^ a convenient number of tlae National 
judiciary'' a council of revision, and that the 
vote was unanimous; and he forgot that 
he had written with his own hand only eight 
days after Pinckney had presented his 
draught to the Convention: 

*^Mr. Pinckney had been at first in favor of 
joining the heads of the principal depart- 
ments, the Secretary of War, of foreign af- 
fairs, etc., in the council of revision. He had 
however relinquished the idea from a con- 
sideration that these could be called on by the 
Executive Magistrate whenever he pleased to 
consult them. He was opposed to an intro- 
duction of the judges into the business." 
Hunt's Writings of Madison, III., pp. 89, 111. 

According to Madison there was a discrep- 
ancy — ^more than a discrepancy, a flat contra- 
diction between the Observations and the 
draught in the State Department, the one say- 
ing explicitly that in ^^some of the best in- 
stituted legislatures of the States" there was 
* * a council of revision, consisting of their exec- 
utive and principal officers of government" 
and that he had ^^incorporated it as part of 
the system"; the other containing no such 

50 



MADISON AS AN ADVOCATE 
provision but, like the Constitntion, giving the 
executive alone the revisionary control of the 
laws. A superficial examination of the case 
would easily bring one to the conclusion that 
Pinckney in 1818 omitted the council of re- 
vision from the draught for the State Depart- 
ment and copied from the Constitution the 
provision which the Convention framed. But 
the brief speech of Pinckney written down con- 
temporaneously by Madison himself, singu- 
larly vindicates both the Observations and the 
draught and leaves the latter stronger than 
it would have been if Madison's friend had 
not furnished ^^the discrepancies noted be- 
low." 

The significance of the term '^council of 
revision" was not known to the friend who 
arrayed the Observations against the draught 
and may not have been to Judge Duer. 
Neither did they know that in the judgment 
and understanding of the Convention the 
President with powers and duties defined as 
they were defined was in legal effect the em- 
bodiment of the council of revision. But 
Madison knew it, or had known it. He too 
had personally participated in the work by 

51 



THE PINCKNEY DEAUGHT 

Ms repeated efforts to engraft a council of 
revision on the Constitution, and liis knowl- 
edge lie had written down in his own words. 
Certainly he had no right to attack Pinckney 
through his unnamed friend. Certainly he 
had no right to leave Judge Duer to infer that 
the discrepancies noted below had received his 
scrutiny and approval. His Journal he knew 
would be published, he was even then pro- 
viding for it in his will, and when published 
it would contradict the discrepancy noted be- 
low and sustain the copy of the draught which 
he was attacking. The obvious explanation 
is that Madison's failing memory failed to 
record his own words, ''the Convention gave 
the executive alone, without the judiciary, the 
revisionary control of the laws,'' and Pinck- 
ney 's express declaration as early as the 6th 
of June that "he had been at first" in favor 
of a council of revision but for reasons stated 
had changed his mind. 

And let it not be supposed that Madison 
deliberately intended to deceive or that he was 
actuated by a malignant wish to deprive 
Pinckney of any thing which he really be- 
lieved was actually his due. Madison was 

52 



[MADISON AS AN ADVOCATE 

tlien an old man — a very old man — in his 85tli 
year wlio had lived long and nnder the strain 
of great labors and intense excitements and 
withering anxieties. He was too old and too 
weary, and too strongly prejudiced to change 
his mind in a minute or to reverse the judg- 
ment of many years by an investigation de 
novo. 

The word '^phenomenon" in his letter to 
Judge Duer reveals his state of mind and well 
explains his acts. That the boy who had lodged 
in the same house with him in Philadelphia, 
the youngest member of the Convention as he 
believed, who was always talking about his 
draught, whom he disliked and underrated, 
that he should appear in 1818 as the chief con- 
tributor to, as the principal draughtsman of 
the Constitution of the United States was in- 
deed to him a phenomenon. It was somethmg 
which he could not really believe. There is a 
note of contrition when he writes that "the 
length of the document laid before the Con- 
vention and other circumstances prevented my 
taking a copy at the time.'' He really be- 
lieved that if he had procured and kept a copy 
of the draught which Pinckney laid before the 

53 



THE PINCKNEY DRAUGHT 

Convention, it would have blown to pieces this 
wild pretentions claim which he had laid be- 
fore the Secretary of State. 

And Madison made a great mistake when 
he represented Pinckney to Judge Dner as an 
old man in 1818 whose waning recollection 
could not then separate the real from the ficti- 
tious in the draught which he had found 
among his papers in Charleston. Por Madi- 
son in 1835, when he wrote to Judge Duer, was 
twenty-five years older than Pinckney was 
when he sent the draught to Mr. Adams; and 
twenty-five years at that end of life is no 
small difference. Moreover his memory from 
his youth up had been laden and taxed with 
great events. It was fifty-two years since he 
had made this despondent note in his record 
of the debates in Congress: 

''Monday, March 17, 1783. 
''A letter was received from General Wash- 
ington, enclosing two anonymous and inflam- 
matory exhortations to the army to assemble, 
for the purpose of seeking, by other means, 
that justice which their country showed no 
disposition to afford them. The steps taken 

54 



MADISON AS AN ADVOCATE 
by the general to avert the gathering storm, 
and his professions of inflexible adherence to 
his duty to Congress and to his country, ex- 
cited the most affectionate sentiments towards 
him. By private letters from the army, and 
other circumstances, there appeared good 
ground for suspecting that the civil creditors 
were intriguing, in order to inflame the army 
into such desperation as would produce a gen- 
eral provision for the public debts. These 
papers were committed to Mr. Oilman, Mr. 
Dyer, Mr. Clark, Mr. Rutledge, and Mr. Mer- 
cer. The appointment of these gentlemen was 
brought about by a few members, who wished 
to saddle with this embarrassment the men 
who had opposed the measures necessary for 
satisfying the army, viz., the half-pay and per- 
manent funds; against one or other of which 
the individuals in question had voted. 

' ' This alarming intelligence from the army, 
added to the critical situation to which our 
affairs in Europe were reduced by the vari- 
ance of our ministers with our ally, and to 
the difficulty of establishing the means of ful- 
filling the engagements and securing the har- 
mony of the United States, and to the confu- 

55 



THE PINCKNEY DRAUGHT 

sions apprehended from tlie approaching res- 
ignation of the superintendent of finance, gave 
peculiar awe and solemnity to the present mo- 
ment, and oppressed the minds of Congress 
with an anxiety and distress which had been 
scarcely felt in any period of the revolution. ' ' 

It was 48 years since Madison had served as 
the most laborious member of the Convention. 
It was 28 years since he had seen the Navy dis- 
graced by the surrender of the Chesapeake af- 
ter firing only a single gun — a disgrace caused 
by the shameful negligence and incapacity of 
administrative officers at Washington while 
he was a member of Jefferson's Cabinet. It 
was 21 years since he had seen the Army dis- 
graced by the negligence of his own Secretary 
of War and the incapacity of a general of his 
own choosing, and his Capitol burnt and him- 
self and his Cabinet fugitives, and his heroic 
wife, her friends and the military guard of 
^ ^ a hundred men all gone, ' ' resolutely refusing 
to leave the Executive Mansion until she had 
taken '^the precious portrait'' of Washington 
from its frame to save it from the ignominy of 
capture by a British Army. The Pinckney 

56 



MADISON AS AN ADVOCATE 

draught was but a leaf blown aside in the tu- 
mults of his troubled life. 

But there remains the documentary evidence 
which Madison adduced and the specification 
of plagiarism which he filed; and apart from 
Madison and apart from Pinckney there re- 
mains the ultimate question which every stu- 
dent of the Constitution must desire to have 
examined, and if possible, answered, ^^What 
provisions of the Constitution were contribu- 
ted by Pinckney"? 



57 



CHAPTEE VI 

THE POSITION" TAKEN BY MADISON 

THE position taken by Madison in private 
letters to individuals, he liad a right to 
modify, abandon or withdraw; and it would 
not be treating him fairly to hold him to words 
hastily written and perhaps inspired by an im- 
pulse of the moment. But the ^^Note of Mr. 
Madison to the Plan of Charles Pinckney" 
(Elliot Vol. 5, 578) deliberately prepared by 
him for future publication, and intended by 
him to accompany the draught of the State 
Department in future publications so that it 
should destroy the supposed verity of the 
copy, must be taken as the final expression of 
his judgment. 

''Note of Mr. Madison to the Plan of 
Charles Pinckney, May 29, 1787." 

*'The length of the Document laid before the 
Convention, and other circumstances, having 
prevented the taking of a copy at the time, 
that which is [''here inserted" stricken out] 

58 



THE POSITION TAKEN BY MADISON 
inserted in the Debates was taken from the 
paper furnished to the Secretary of State, and 
contained in the Journal of the Convention, 
published in 1819 which it' being taken for 
granted was a true copy was not then 
examined. The coincidence in several in- 
stances between that and the Constitution as 
adopted, having attracted the notice of others 
was at length suggested to mine. On com- 
paring the paper with the Constitution in its 
final form, or in some of its Stages ; and with 
the propositions, and speeches of Mr. Pinck- 
ney in the Convention, it was apparent that 
considerable errour had crept into the paper; 
occasioned [^'probably" stricken out] pos- 
sibly by the loss of the Document laid be- 
fore the Convention, (neither that nor the 
Kesolutions offered by Mr. Patterson, be- 
ing among the preserved papers), and by a 
consequent resort for a copy to the rough 
draught, in which erasures and inter-linea- 
tions following what passed in the Con- 
vention, might be confounded in part at least 
with the original text, and after a lapse of 
more than thirty years, confounded also in the 
memory of the Author. 

59 



THE PINCKNEY DEAUGHT 

'* There is in the paper a similarity in some 
cases, and an identity in others, with details, 
expressions, and definitions, the results of crit- 
ical discussions and modifications in the Con- 
vention, that [** cannot be ascribed to accident 
or anticipation'' omitted] conld not have been 
anticipated. 

^^ Examples may be noticed in Article VIII. 
of the paper ; which is remarkable also for the 
circumstance, that whilst it specifies the func- 
tions of the President, no provision is con- 
tained in the paper for the election of such an 
ofiicer, nor indeed for the appointment of any 
Executive Magistracy: notwithstanding the 
evident purpose of the Author to provide an 
entire plan of a Federal Government. 

** Again, in several instances where the 
paper corresponds with the Constitution, it is 
at variance with the ideas of Mr. Pinckney, 
as decidedly expressed in his propositions, 
and in his arguments, the former in the Jour- 
nal of the Convention, the latter in the report 
of its debates: Thus in Art: VIII. of the 
paper, provision is made for removing the 
President by impeachment; when it appears 
that in the Convention, July 20, he was op- 

60 



THE POSITION TAKEN BY MADISON 

posed to any impeachability of the Executive 
Magistrate: In Art: III., it is required that all 
money-bills shall originate in the first Branch 
of the Legislature; which he strenuously op- 
posed Aug : 8, and again, Aug: 11 : In Art : V., 
members of each House are made ineligible to, 
as well as incapable of holding, any office un- 
der the Union, etc., as was the case at one 
Stage of the Constitution; a disqualification 
highly disapproved and opposed by him 
Aug: 14. 

'^A still more conclusive evidence of errour 
in the paper is seen in Art: III., which pro- 
vides, as the Constitution does, that the first 
Branch of the Legislature shall be chosen by 
the people of the several States ; whilst it ap- 
pears, that on the 6th of June, according to 
previous notice, too, a few days only, after the 
Draft was laid before the Convention, its Au- 
thor opposed that mode of choice, urging & 
proposing, in place of it, an election by the 
Legislatures of the several States. 

''The remarks here made, tho' not ma- 
terial in themselves, were due to the authen- 
ticity and accuracy aimed at, in this Eecord of 
the proceedings of a Publick Body, so much 

61 



THE PINCKNEY DRAUGHT 

an object, sometimes, of curious research, as 
at all times, of profound interest. ' ' 

*^As an Editorial note to the paper in the 
hand writing of Mr. M. beginning ^The 
length, &c.' " 

^^*Striking discrepancies will be found on a 
comparison of his plan, as furnished to Mr. 
Adams, and the view given of that which was 
laid before the Convention, in a pamphlet pub- 
lished by Francis Childs at New York shortly 
after the close of the Convention. The title 
of the pamphlet is ^ Observations on the plan 
of Government submitted to the Federal Con- 
vention on the 28th of May, 1787, by Charles 
Pinckney, &c.' 

^^But what conclusively proves that the 
choice of the H. of Reps, by the people could 
not have been the choice in the lost paper is a 
letter from Mr. Pinkney to J. M. of March 
28 J 1789 J now on his files, in which he emphat- 
ically adheres to a choice by the State Legrs. 
The following is an extract — 'Are you not, 
to use a full expression, abundantly convinced 
that the theoretical nonsense of an election 
of the members of Congress by the people in 

62 



THE POSITION TAKEN BY MADISON 
the first instance, is clearly and practically 
wrong — that it will in the end be the means of 
bringing our Councils into contempt and that 
the Legislatures (of the States) are the only 
proper judges of who ought to be elected?' " 

It is plain that Madison intended that the 
last two paragraphs of the foregoing, begin- 
ning with an asterisk, should take the form of 
an editorial note, and he so prepared the paper 
even to the placing of the asterisk at the begin- 
ning. As long before this as 1821 he had de- 
termined in his own mind that the publication 
of the Journal should be as he termed it, "a 
posthumous one" (letter to Thomas Eitchie 
September 15, 1821), and he carried out the 
intention by so providing in his will made in 
1835. The expected editor was Mrs. Madison ; 
and she, he knew, would scrupulously and in- 
telligently carry into effect his slightest wish. 
She was not able to perform the editorial 
task. 

When these charges of Madison are an- 
alyzed they may be reduced to three. The 
first and most serious charge is that there are 
coincidences ''in several instances'' between 

63 



THE PINCKNEY DRAUGHT 

the draught and the Constitution — '^a similar- 
ity in some cases and an identity in others 
with details, expressions and definitions'' 
which were *^the results of critical discussion 
and modification in the Convention.'' The 
second is that there are provisions in the 
draught inconsistent with Pinckney's known 
views, with the propositions which he pre- 
sented and the speeches which he made in the 
Convention and that these provisions are so 
inconsistent with his views and speeches that 
they are * ^ conclusive evidence of error ' ' in the 
draught. The third, is that Pinckney imme- 
diately after the sittings of the Convention 
printed and published a paper entitled ^'Ob- 
servations" which described the contents of 
the draught which he had presented to the 
Convention and that the two are utterly ir- 
reconcilable. 



64 



CHAPTER yil 

THE PLAGIAEISMS 



NOTWITHSTANDING Madison's igno- 
rance of the contents of the draught, and 
the fallacy of the inference which he drew 
from the fact that Pinckney did not adhere to 
all the provisions of a tentative scheme, there 
remains an objection of the gravest charac- 
ter, susceptible of proof or disproof which 
must rest on facts and not be deduced by in- 
ferences. The objection that Pinckney framed 
a provision at one time and disapproved of it 
at another is easily superable: the objection 
that '* there is in the paper a similarity in some 
cases and an identity in others with details, 
expressions and definitions, the results of crit- 
ical discussion and modification in the Con- 
vention which could not have heen antici- 
pated/' is insuperable— if it be well founded. 
That is to say if there are ^^ details, expres- 
sions and definitions'' in the State Depart- 
ment copy of the draught which were ^^the re- 

65 



THE PLAGIARISMS 

lutions, on the 29th of May, and ended on the 
26th of July with the 23 resolutions of the 
Convention. The 15 resolutions had been con- 
sidered and discussed and modified and ex- 
panded into the 19 resolutions of the Commit- 
tee of the Whole, June 13th ; and the 19 resolu- 
tions had also been considered and discussed 
and modified and enlarged into the 23 resolu- 
tions of the Convention, July 26th. Never in 
the history of nations did a deliberative public 
body strive so philosophically, so wisely and 
well to possess itself of the subjects to be con- 
sidered — to comprehend its task — to know 
what it was doing and to do. 

^^At the beginning, propositions for consid- 
eration and discussion were tentatively placed 
before the Convention in an abstract form. 
These propositions were embodied in 15 reso- 
lutions, which were immediately referred to 
the Committee of the Whole. They were 
taken up one by one, and considered and dis- 
cussed and amended or rejected or adopted 
or postponed for later consideration. The 
abstract of a part of a single day's proceed- 
ings will give a clear idea of the way in which 
the Convention worked : 

67 



THE PINCKNEY DEAUGHT 

suits of critical discussion and modification 
in the Convention wMcli could not have heen 
anticipated/' then the presumption must be 
well nigh irrefutable that these "details, ex- 
pressions and definitions" in the questionable 
instrument were taken from the Constitution ; 
and in the absence of extraordinary explana- 
tion, we shall be compelled to agree with Madi- 
son that the evidence is ''irresistible" — unless 
indeed it should appear that the expressions 
and definitions which at first sight appear to 
have been begun and created in the Conven- 
tion had previously existed in the Articles of 
Confederation or in a State Constitution, or in 
the resolutions of the Continental Congress 
or in some source open to all parties. 

To a right understanding of the circum- 
stances and conditions of the subject of in- 
vestigation, we must bear in mind, when we 
begin the inquiry whether there are "details, 
expressions and definitions" in the Pinckney 
draught which were ''the results of critical 
discussion and modification in the Conven- 
tion," that the Constitution passed through 
four germinal stages : 

The first began with Eandolph's 15 reso- 

66 



^ J 



THE PINCKNEY DRAUGHT 

* Tuesday, June 5. Mr. Randolph's ninth 
proposition — The national judiciary to he 
chosen hy the national legislature — Disagreed 
to — To hold office during good behavior and 
to receive a fixed compensation — Agreed to 
To have jurisdiction over offenses at sea, cap- 
tures, cases of foreigners and citizens of dif- 
ferent States, of national revenue, impeach- 
ment of national officers, and questions of 
national peace and harmony — Postponed. 

''At the end of two weeks of such consid- 
eration and discussion, June 13, the Committee 
of the Whole reported the conclusions which 
had so far been reached in the form of 19 res- 
olutions. But everything was still abstract 
and tentative. No line of the Constitution 
had yet been written; no provision had yet 
been agreed upon. The 19 resolutions in like 
manner were taken up, one by one, and in 
like manner considered and discussed, and 
amended or rejected or adopted or postponed. 
Other propositions coming from other sources 
were also considered ; and so the work went on 
until July 26, when the conclusions of the Con- 
vention were referred to the Committee of 

68 



THE PLAGIAEISMS 

Detail, and tlie work of reducing the abstract 
to the concrete began. The Convention then 
adjourned to Angnst 6, to enable the commit- 
tee to ^prepare and report the Constitution.' 

^^ On August 6, the Committee of Detail re- 
ported and furnished every member with a 
printed copy* of the proposed Constitution. 
Again the work of consideration began, and 
went on as before, section by section, line by 
line. Vexed questions were referred to com- 
mittees representing every State, — ''grand 
committees'' they were called,— amendments 
were offered, changes were made, the Com- 
mittee of Detail incorporated new and addi- 
tional matters in their draught, until, on Sep- 
tember 8, the work of construction stopped. 
But not even then did the labors of the Con- 
vention cease. On that day a committee was 
appointed, ''by ballot, to revise the style of, 
and arrange, the articles which had been 
agreed to." This committee was afterward 
known as the Committee of Style. It re- 
ported on the 12th of September, and the work 
of revision again went on until Saturday, the 
15th. On Monday, the 17th, the end was 
reached, and the members of the Convention 

69 



THE PINCKNEY DKAUGHT 

signed the Constitution. Well might Frank- 
lin exclaim in his farewell words to the Con- 
vention: 'It astonishes me, sir, to find the 
system approaching so near to perfection as 
it does ! ' He had been overruled more than 
once in the Convention; provisions which he 
had proposed had been rejected; provisions 
which he had opposed had been retained; bnt 
he was a great man and saw that a great work 
had been accomplished." The Immutability 
of the Constitution. Encyclopaedia Ameri- 
cana. 

The second germinal stage began July 26th 
with the appointment of a committee — the 
Committee of Detail ''for the purpose of re- 
porting a Constitution," and continued until 
August 6th when "Mr. Rutledge delivered in 
the report of the Committee of Detail — a 
printed copy being at the same time furnished 
to each member." 

The Committee had retired from the Con- 
vention with instructions couched in the 23 
resolutions, and they returned to it with more 
than half of the Constitution, arranged in the 
form of articles and sections substantially as 

70 



THE PLAGIARISMS 

we have them in the Constitution. The num- 
ber of provisions contained in the draught 
greatly exceeded the number of specific in- 
structions set forth in the resolutions, but 
the excess was not wholly an excess of au- 
thority for it had been resolved : 

* * That the national legislature ought to pos- 
sess the legislative rights vested in Congress 
by the Confederation: and moreover to leg- 
islate in all the cases for the general inter- 
ests of the Union, and also in those to which 
the States are separately incompetent or in 
which the harmony of the United States may 
be interrupted by the exercise of individual 
legislation. ' ' 

When the paper which Eutledge held in his 
hand, as he rose to address the Convention 
on the 6th of August, was placed on the table 
before Washington, the moment witnessed the 
birth of the Constitution. Provisions which 
it contained were to be stricken out, and some 
of the great compromises were yet to be forged 
and inscribed upon the scroll, but the written 
Constitution was now in being. And yet this 
is but figurative language. The great state 
paper which passed from the hand of Rut- 

71 



THE PINCKNEY DEAUGHT 

ledge to the hand of Washington was not en- 
grossed on parchment, like a second Magna 
Charta; it was not attested by signature or 
date ; it was not even in writing ; a few pages 
of printer's paper, plain and unpretentious; 
a mere copy, one of a number of printed 
copies, as we gather from the record. But 
it was to receive the severest scrutiny of some 
of the great men of the world, of Washington, 
Franklin, Madison, Ellsworth, Wilson, Eut- 
ledge, Hamilton. 

The printed document found in the box 
which holds the few records of the Convention 
is not unworthy of a great state paper. It 
is on stately, heavy, hand-made paper, 10 by 
15% inches in size. The printed matter is 
5% inches by 12i/^. There are seven pages 
carrying from 27 to 53 lines on each. The 
workmanship is faultless; the type clear, the 
impression uniform, the ink unfaded, the punc- 
tuation careful, the spacing perfect. There 
are but two typographical errors, one of which 
is a misnumbering of the articles. In Pinck- 
ney's draught the first article has inscribed 
over it '^Article 1" and the following articles 
have only their numbers 2, 3, etc. The prin- 

72 



THE PLAGIAEISMS 

ter followed the same form, the only difference 
being that Pinckney, writing the draught with 
his own hand, used arable figures, for which 
the printer substituted Eoman numerals. 
When he reached the seventh article he re- 
peated VI. and when he reached the eighth he 
entitled it VII. and continued the error 
through the remaining articles. Notwith- 
standing this blemish I have never seen so 
faultless a public document. 

The copy bears this endorsement: 

*' Printed Draught of the Constitution, 
received from the President of the United 
States, March 19th, 1796 by 

*^ Timothy Pickering 

^^Sec'y of State" 

The name of the printer who did his confi- 
dential work so well, I regret to say, is not 
upon the paper. 

It has been supposed and said that this 
copy of the draught was Jackson's, the inef- 
ficient Secretary of the Convention, and that 
he used it to save himself the trouble of writ- 
ing out the proceedings in the journal by not- 

73 



THE PINCKNEY DRAUGHT 

ing amendments on the margin. This like 
mnch other imaginary history is erroneous. 

When I first saw the draught of the commit- 
tee, I observed that the notes on the margin 
were written in two different hands. I also 
observed that one of these though not familiar 
was a hand which I had seen before. On call- 
ing the attention of Mr. S. B. Crandall of the 
Bureau of Rolls to it, he instantly recognized 
this writing as Washington's. A further ex- 
amination showed that 115 notes and inter- 
lineations were written by Washington and 7 
by Jackson. This copy of the draught was 
Washington's own copy! 

Whether he placed the copy among the pa- 
pers of the Convention on September 17, 1787 
when the Secretary brought them to him; or 
whether he transferred his own copy to the 
Secretary of State in 1796 is unknown and 
probably unascertainable, but the indorsement 
makes it certain that the paper came to the 
Department directly from Washington; and 
the 115 carefully made emendations in his 
handwriting are for us the highest evidence 
in the world of its authenticity. 

The notes by Jackson are easily explicable ; 

74 



THE PLAGIAEISMS 

they are lengthy amendments which Wash- 
ington could not take down from hearing them 
read; and he handed his printed copy to the 
Secretary to have them correctly and fully 
written ont.^ 

If the Committee of Detail — Entledge of 
Sonth Carolina, Eandolph of Virginia, Gor- 
ham of Massachusetts, Ellsworth of Connec- 
ticut and Wilson of Pennsylvania — intended 
to keep their work a profound secret, and the 
secret to be buried with themselves, they could 
not have planned better than they did. The 
work was done in secret; they employed no 
secretary; their report was not in writing. 
After the committee was discharged no hint 
or word seems to have escaped them. No 
man boasted of his own part or disparaged 
another's. There is no journal which tells 
us how they worked. No son or daughter 
or grandchild has revealed a word that any 
member subsequently said. In 1813 when Ed- 

iFor the benefit of those persons who are so fortunate 
as to have a copy of the Documentary History of the Con- 
stitution (Department of State, 1894) I will add that the 
marginal notes which are in the writing of Jackson are those 
of Art. V, Sec. 1; Art. VI, Sec. 3; Sec. 13, Art. VII; Sec. 
1, Art. XI; Sec. 4, Art. XV; (see Doc. Hist., Constitution 
Vol. I, p. 285). 

75 



THE PINCKNEY DRAUGHT 

mund Randolph died, the secret of the mem- 
bers of the Committee of Detail died with 
him. 

The third germinal stage was based on the 
draught of the Committee of Detail and ex- 
tended frOin the 6th of August to the 12th of 
September. The draught of the Committee 
constituted the divide in the march of the 
framers. Behind them was the plain of phil- 
osophical disquisition on which there had been 
many contests, but exclusively as to what 
might be and might not be. Before them were 
many hills of difficulty to be surmounted in 
the practical application of abstract propo- 
sitions by incorporating them in provisions 
and conditions to be written into the Consti- 
tution. But the work of the Convention and 
the debates of the members were in connec- 
tion with the draughted Constitution of the 
Committee of Detail, or in connection with 
amendments thereof or additions thereto. 
There were indeed new provisions framed 
sometimes by grand committees, sometimes 
by special committees, sometimes by the 
Convention itself — provisions concerning 
which the Convention had not at first suffi- 

76 



THE PLAGIARISMS 

ciently instructed the Committee of Detail- 
provisions which the Convention had not then 
considered and determined even in the form of 
abstract propositions. The most difficult of 
the compromises, that between the large and 
the small States in the choosing of the Presi- 
dent, was eifected; and the method first pro- 
posed by "Wilson and rejected by the Conven- 
tion, June 2nd, that the choice should be made 
through the agency of electoral colleges 
was reconsidered and adopted. The power 
to try officers impeached by the House of 
Eepresentatives was taken from the Supreme 
Court and given to the Senate; the power to 
appoint ambassadors, and judges of the Su- 
preme Court, was taken from the Senate and 
given to the President; the power to appoint 
the Treasurer of the United States was taken 
from the Legislative branch and given to the 
Executive; and the important treaty-making 
power which at first was lodged exclusively 
in the Senate was transferred to the Executive 
subject to the ratification of the Senate. But 
all that was considered and agreed upon was 
attached to the draught of the Committee of 
Detail. 

77 



THE PINCKNEY DEAUGHT 

The foTirtli stage began on tlie 12th of Sep- 
tember with the revised Constitution reported 
by the Committee appointed 'Ho revise the 
style of and arrange the articles'' which had 
been agreed upon, commonly termed the 
'^ Committee of Style," but which more cor- 
rectly might have been termed the Commit- 
tee of Revision. During that and the next 
three days the Constitution was modified by a 
number of amendments chiefly of the nature 
of corrections. The Committee of Style made 
no changes other than those of arrangement 
and language. The correction of the language 
of the Constitution was masterly and is 
ascribed by Madison to Gouverneur Morris. 
On Saturday the 15th of September the labors 
of the Convention ended. On Monday the 
17th, the engrossed Constitution was signed. 

In his ''Note to the Plan," Madison speci- 
fies some of the "details, expressions and defi- 
nitions'' which were framed in the Conven- 
tion, the "results of critical discussions" 
that "could not have been anticipated" by 
Pinckney. "Examples" of these "similari- 
ties" and "identities" he says, "may be no- 
ticed in article VIII, which is remarkable also 

78 



THE PLAGIAEISMS 

for the circumstance that whilst it specifies 
the functions of the President, no provision is 
contained in the paper for the election of such 
an officer. ' ' These are all the specifications of 
provisions or of language plagiarised from the 
Constitution by Pinckney which Madison has 
filed. Specifying nothing else, we may as- 
sume that the plagiarisms contained in article 
VIII. were the plagiarisms which dwelt in his 
own mind and upon which he rested his con- 
clusions. 

These specific charges of plagiarism may be 
struck down by a single blow:— - 

Not one of the provisions contained in 
Pinckney' s article VIII was framed in the 
Convention, and all loere brought before 
the Convention by the draught of the Com- 
mittee of Detail All the provisions of the 
Constitution which ivere framed by the Con- 
vention were framed subsequently to the 6th 
of August and belong to the 3d and 4th ger- 
minal periods. All the provisions which are 
contained in the draught of the Committee of 
Detail ivere framed before the 6th of August 
and existed before the constructive ivorh of 
the Convention began, 

79 



THE PINCKNEY DEAUGHT 

"When the sequence of events is observed 
the matter is cleared and the ^^ phenomenon" 
of Madison becomes a simple link in the chain 
of events. Pinckney presented his draught to 
the Convention on its first business day be- 
fore there had been a single '^critical discus- 
sion." The Convention immediately referred 
the draught to the Committee of the Whole, 
which made it accessible to every member of 
the Convention. When a committee was ap- 
pointed to draught a Constitution, the draught 
of Pinckney was taken from the Committee of 
the Whole and referred to the Committee of 
Detail. The committee found in the draught 
matter which they needed and they used it as 
the basis of their own draught as any commit- 
tee would have done. And thus the draught 
of the Committee of Detail became the vehicle 
by means of which these provisions and ex- 
pressions of Pinckney were carried into the 
Constitution. 

If all this were not a matter of record it 
would be well nigh unbelievable that Madison 
of all men could have pursued the course he 
did. The most diligent member of the Con- 
vention, the chronicler of its transactions, the 

80 



THE PLAGIARISMS 

sole survivor of its members and, consequent- 
ly, a witness who should speak with the great- 
est care ; and yet we find him, at one end of the 
line, ignorant of the contents of Pinckney's 
draught, and at the other silent as to the con- 
tents and existence of the draught of the Com- 
mittee of Detail. When he wrote of ^' the co- 
incidence in several instances between that 
[the State Department draught] and the Con- 
stitution as adopted'^ and cited article VIII 
as containing remarkable examples of these 
coincidences, he gave unconsciously a curious 
illustration of things ^^ confounded in the mem- 
ory'' ''after a lapse of more than thirty 
years" — in his case, after a lapse of more than 
forty-five years. 

With the fall of these specifications falls the 
general charge of plagiarism. The draught in 
the State Department ends with the draught 
of the Committee of Detail; whatever coinci- 
dences there be of ''details, expressions and 
definitions" are coincidences in the two 
draughts and in them alone. The similarities 
and identities which so impressed Madison 
were merely similarities and identities between 
the two draughts. He doubtless selected arti- 

81 



THE PINCKNEY DEAUGHT 

cle VIII as ^^ remarkable'' because lie recog- 
nized in it provisions and expressions which 
he knew were in the Constitution. But there 
are others in article VIII which are not in the 
Constitution and which are inconsistent with it. 
The retention of these is sufficient to refute the 
idea that Pinckney changed his draught to 
make it conform to the work of the Conven- 
tion. Article VIII provides that the title of 
the President ^^ shall be his Excellency.'* 
There is no such provision in the Constitution. 
Article VIII makes exceptions to the appoint- 
ing power; ^^ambassadors, other ministers and 
judges of the Supreme Court" are not to be 
appointed by the President but by the Senate. 
This was not one of the ^^ results" arrived at 
in the Convention. In case of the death of the 
President and the death of the President of 
the Senate, '^the Speaker of the House of Dele- 
gates shall exercise the duties of the office." 
Here all that Pinckney had to do to make his 
draught conform was to run his pen through 
the supplementary clause vesting the succes- 
sion in the Speaker. The President may be 
removed from office on impeachment by the 
House of Delegates and ** conviction in the 

82 



THE PLAGIAEISMS 

Supreme Court. ' ' Here all that Pinckney had 
to do was to erase ''Supreme Court" and in- 
sert ''Senate." Finally it is to be noted that 
those expressions and provisions in article 
VIII which caught the eye of Madison and 
were characterized as ' ' remarkable ' ' were not 
"results of critical discussion and modifica- 
tion in the Convention that could not have 
been anticipated, ' ' but were provisions and ex- 
pressions which had been taken by Pinckney 
from the constitutions of New York and Mas- 
sachusetts, generally word for word. The ar- 
ticle provides that the President "shall from 
time to time give information to the legislature 
of the state of the Union," and "recommend 
to their consideration" the measures he may 
think necessary; that "he shall take care that 
the laws be duly executed"; that "he shall 
commission all officers"; and "shall nominate 
and with the consent of the Senate" appoint 
officers; that "he shall have power to grant 
pardons and reprieves "; and that "he shall be 
commander in chief of the army and navy"; 
but each of these provisions was taken from 
the constitution of New York. The article 
also provides that at "entering on the duties 

83 



THE PINCKNEY DEAUGHT 

of his office he shall take an oath faithfully to 
execute the duties" of President; and that he 
*^ shall be removed from his office on impeach- 
ment by the House of Delegates''; but these 
provisions were taken from the constitution 
of Massachusetts. The article also provides 
that '4n case of his removal by death, resig- 
nation or disability, the President of the Sen- 
ate shall exercise the duties of his office ' ' ; but 
this is taken from the constitution of New 
York. In a word when we trace these provi- 
sions and expressions to their respective 
sources there is nothing left of the article. 
Article VIII is indeed remarkable ; but it is for 
reversing the deductions of Madison ; for dem- 
onstrating with mathematical certainty (so 
far as it goes), that Pinckney did not make 
his draught conform to '^results'' which had 
been reached in the Convention, and which 
'^ could not have been anticipated." ■ 



84 



CHAPTER VIII, 

THE IMPROBABILITIES 

THE most incisive reason given by Mad- 
ison against the authenticity of the 
draught in the Department of State, the reason 
which he most reiterated, if not the one upon 
which he most relied, was that the draught 
was presented to the Convention on the 29th 
May and a week later, June 6th, Pinck- 
ney moved ''that the first branch of the na- 
tional legislature be elected by the State legis- 
latures and not by the people." This objec- 
tion is not only plausible but it rests on two 
incontrovertible facts each of which is a mat- 
ter of record — that the draught was presented 
to the Convention on the 29th of May ; that his 
inconsistent motion was made on the 6th of 
June. But the conclusiveness of these facts 
disappears when the circumstances and 
changed conditions of the case appear. 

In the first place Pinckney had forestalled 
the point made by Madison by declaring in 

85 



THE PINCKNEY DRAUGHT 

his letter to the Secretary of State that there 
were provisions in the draught which on fur- 
ther reflection he had opposed in the Conven- 
tion. This declaration, it must be remember- 
ed, was made before the publication of Madi- 
son's Journal, before it was known that it 
would be published, before Pinckney knew or 
could have known what the Journal would 
show. In other words it was he himself who 
first revealed his own inconsistency in having 
presented a plan for one thing in May and 
in having contended for another thing in June. 
The explanation is not an after-thought or a 
defence, but an avowal made in due time. 

In the second place the draught was present- 
ed on the 29th of May, but it was not written 
then. It must have been written weeks before 
this in Pinckney 's study in Charleston. When 
he wrote it he had before him, as every 
American of that day had, the Constitution of 
Great Britain, the constitution under which he 
had grown up, the merits and virtues and wis- 
dom and excellencies of which he had read and 
re-read in Blackstone. It was a matter of 
course for him, when dealing with the legisla- 
tive power, to have his Congress consist of two 

86 



THE IMPEOBABILITIES 
houses. 'As to this there would not be a doubt 
or a thought. The next thing would be to have 
the members of the first house, like the mem- 
bers of the House of Commons, elected by the 
people. So far he had no reason to pause and 
reflect. But when he came to the second 
house, he had no nobility at hand of which it 
might be composed. Here his invention be- 
gan, and he avowedly so contrived his Senate 
that it should in fact though not in form, rep- 
resent not nobility but wealth. It is probable 
that when he was draughting his constitution, 
it never entered his head that the lower house 
of the American parliament could be chosen 
by any other means than the means by which 
the House of Commons was chosen and the 
lower house of every American State. 

In the third place between the 29th of May 
and the 6th of June the subject had come be- 
fore the Convention and had been discussed 
and South Carolina had taken a position 

against it. 

Gerry of Massachusetts said that ''the evils 
we experience flow from the excess of democ- 
racy''; and that ''he did not like the election 
by the people." Butler, of South Carolina, 

87 



THE PINCKNEY DRAUGHT 

^'thouglit an election by the people an imprac- 
ticable mode. ' ' Eutledge, tbe strongest man in 
the State, seconded the motion to have the 
first branch elected by the State legislatures. 
Charles Cotesworth Pinckney, the most es- 
teemed citizen of the State and Pinckney's 
kinsman, brought South Carolina before the 
Convention as an illustration and even went 
so far as to say ^'an election of either branch 
by the people, scattered as they are in many 
States, particularly in South Carolina, is total- 
ly impracticable." 

Pinckney was the youngest member of the 
delegation — ^much the youngest. He was not 
yet 30 ; and, with the exception of Dayton and 
Mercer was the youngest member of the Con- 
vention. It would have been natural for him 
as a Southerner ''to go with his State" — and 
as a young man to defer to his seniors. And 
after hearing the debate on the 31st of May 
and the reasons of his fellow delegates from 
South Carolina, it was proper for him to 
change his mind and advocate election by the 
State legislatures as a better mode. It would 
have been a matter of wonder if he had 
not! 

88 



THE IMPEOBABILITIES 
But there is a letter of George Eead which 
should be considered, for it suggests the ques- 
tion whether this change of Pinckney did not 
take place before the 29th of May; that is to 
say before he presented his draught to the 
Convention. 

On the 20th of May 1787 Mr. Read wrote 
from Philadelphia to John Dickinson: 

''I am in possession of a copied draught of 
a federal system intended to be proposed if 
something nearly similar shall not precede it. 
Some of its principal features are taken from 
the New York system of government. A house 
of delegates and senate for a general legisla- 
ture, as to the great business of the Union. 
The first of them to be chosen by the legislature 
of each State, in proportion to its number of 
white inhabitants, and three-fifths of all oth- 
ers, fixing a number for sending each repre- 
sentative. The second, to-wit the senate, to 
be elected by the delegates so returned, either 
from themselves or the people at large, in four 
great districts, into which the United States 
are to be divided for the purpose of forming 
this senate from which, when so formed, is to 
be divided into four classes for the purpose of 

89 



THE PINCKNEY DEAUGHT 

an annual rotation of a fourth of the members. 
A president having only execntive powers for 
seven years.'' (Eead's Life of George Eead 
of Delaware p. 443.) 

This letter is very far from being conclusive. 
In the first place it does not appear that Mr. 
Eead had seen the original of this ^^ copied 
draught" or that Pinckney had given him the 
copy or had told him what his plan was or that 
any person who had seen the original draught 
had told him what it contained. In the second 
place the existence of an unauthenticated copy 
on the 20th of May does not conclusively prove 
that a different version of the same draught 
was not presented to the Convention on the 
29th of May. Still this letter undoubtedly re- 
fers to Pinckney 's draught and compels a more 
searching examination of the question raised 
than would otherwise be necessary. 

In a paper which will be called, briefly, *^the 
Observations ' ' written by Pinckney before he 
left Charleston he sets forth at length a de- 
scription of his plan of government. In the 
opening paragraph of this paper he says that 
he will ^^give each article" of his draught 
''that either materially varies" from the pres- 

90 



THE IMPROBABILITIES 
ent government ''or is new." He then goes 
on to say that 'Hhe first important alteration 
is that of the principle of representation." 
' ' Representation is a sign of the reality. Upon 
this principle, however abnsed, the Parliament 
of Great Britain is formed, and it has been 
universally adopted by the States in the for- 
mation of their legislatures." This is all 
which Pinckney, writing before the Convention 
began its work, had to say concerning the low- 
er house of Congress. His Senate was new and 
concerning it he had much more to say, and 
he described it. But of the lower house, the 
popular body, he had nothing to say save that 
there would be such a house, and that it would 
rest upon the principle of representation ''uni- 
versally adopted by the States in the forma- 
tion of their legislatures." The Virginia res- 
olutions undoubtedly expressed the opinion of 
substantially all Americans when they said, 
"Resolved that the members of the first branch 
of the national legislature ought to be elected 
by the people of the several States. ' ' Assured- 
ly if the draught which Pinckney was then de- 
scribing had contained the extraordinary and 
novel proposition that the popular branch of 

91 



THE PINCKNEY DEAUGHT 

the national legislature, the body wliich should 
represent the people, was not to be chosen by 
the people he would have had something 
*^new'' to lay before the Convention — some- 
thing which did not exist in the government 
of any English speaking people in the world — 
something which ^ ^ materially varied" from 
the belief and usage and history and traditions 
of the people who were to ordain this Consti- 
tution. Knowing Pinckney as we do — ^his 
general views, his adherence to the general 
principles of the British constitution, his at- 
tentive study of State constitutions, his out- 
spokenness, his belief in his own devices, we 
know that if his draught had then contained 
so radical a departure from all existing consti- 
tutions as that which he subsequently proposed 
in the Convention, and if he had worked him- 
self into a belief at the time when he wrote the 
Observations that the election of their repre- 
sentatives by the people was ^ ^ theoretical non- 
sense'', he could not have refrained from say- 
ing so. What is said in the Observations har- 
monized with the constitutions of every State 
in the Confederation and with the Virginia 
resolutions and with the views of every mem- 

92 



THE IMPROBABILITIES 
ber of the Convention excepting the five great 
land owners from South Carolina. 

The Observations, therefore (written before 
the Convention and published afterwards), 
sustain the draught in the State Department. 

The words ''the people" appear directly and 
necessarily in article 3 of the draught: ''The 
Members of the House of Delegates shall 

be chosen every year by the people of the 

several States; and the qualifications of the 
electors shall be the same as those of the elect- 
ors in the several States for their Legisla- 
tures." They reappear casually and need- 
^ lessly in article 5 : "Each State shall prescribe 
. the time and manner of holding elections hy 
the people for the House of Delegates." The 
draught therefore in these provisions is con- 
sistent with itself. 

In the draught of the Committee of Detail 
the words of Pinckney's article 3 again appear 
with some amplification, but in the same order 
with the same context and with the same in- 
tent. Such agreements come not by chance. 

And if such agreements come not by chance, 
could Pinckney while he was copying the com- 
mittee 's draught for his own article 3 have 

93 



THE PINCKNEY DEAUGHT 

written these two troublesome words ^^the peo- 
ple '^ without taking heed of their significance, 
without realizing what he was doing, without 
remembering that his own draught had said 
^Hhe legislatures of the several States." He 
conld not! For there is another provision in 
the draught in the State Department which 
was not taken from the committee's draught — 
which did not exist in the committee's draught 
— which must have been deliberately framed 
by Pinckney — the provision before quoted 
from article 5, ' ^ Each State shall prescribe the 
time and manner of holding elections by the 
people for the House of Delegates." That is 
to say if Pinckney unintentionally abstracted 
his article 3 from the committee's draught in 
1818, he, nevertheless, must have fabricated 
designedly his article 5 at the same time; for 
there is nothing in the committee 's draught to 
suggest it. 

Then the question immediately arises. What 
motive could Pinckney have had for falsifying 
his draught and making this change from the 
election of delegates by State legislatures to 
their election by the people of the several 
States. The answer of the superficial of 

94 



THE IMPEOBABILITIES 
course will be, ^'So that the world should be- 
lieve that 'he had always been in favor of the 
election of representatives by the people.'' 
No other reason can well be assigned; yet there 
could not have been such a motive. Pinckney 
knew that his draught was to be soon published 
and that with it would be published the of&cial 
Journal of the Convention and that the publi- 
cation would disclose to the world this record: 

'^ Wednesday, June 6, 1787 

^^Mr. Gorham in the Chair. 
*^It was moved by Mr. Pinckney, seconded 
by Mr. Rutledge to strike the word * people' 
out of the 4th resolution submitted by Mr. Ean- 
dolph, and to insert in its place the word 

^Legislatures' so as to read ^resolved that 
the Members of the first branch of the national 
legislature ought to be elected by the Legisla- 
tures of the several States' 

^^and on the question to strike out 
^^it passed in the negative." 

If Pinckney 's article 3 had really provided 
that members of the first house should be chos- 
en hy the legislatures of the several States, cer- 

95 



THE PINCKNEY DEAUGHT 

tainly his article 5 would not have provided 
that ^^eacli State shall prescribe the time and 
manner of holding elections by the people/' 
Article 3 laid down the basic principle that 
representatives were to be chosen by the peo- 
ple, and article 5 provided for the time and 
manner when and whereby the people should 
elect their representatives; and article 4 pro- 
vided that Senators should be chosen, not by 
the people or the legislatures of the several 
States, but by the House of Delegates. In all 
these provisions we again see that the draught 
in the State Department is consistent with it- 
self. 
>^ It is possible that the person who gave the 
'^ *^ copied draught'^ to Mr. Eead was Pinckney 
himself ; and it is probable that by the 20th of 
May he had changed his mind concerning the 
election of delegates by the people and had de- 
termined to make his draught conform to the 
views of his fellow delegates from South Caro- 
,,^ lina. We know, .as will hereafter appear, that 
he contemplated making many amendments to 
his draught before presenting it to the Conven- 
tion ; and that he hastily and prematurely pre- 
sented it on the 29th of May so that it should 

96 



THE IMPROBABILITIES 

go with the Virginia resolutions to the Com- 
mittee of the Whole. The change we are con- 
sidering may not have been made in the writ- 
ten instrument which he laid upon the Secre- 
tary's desk, though he made the change in his 
own mind. But be that as it may, it is as cer- 
tain as existing knowledge goes that no man 
saw the original draught with the words ^'by 
the people" twice stricken out and the words 
^^by the legislatures of the several States'' 
twice written in; and until this change in the 
original draught is shown by positive testi- 
mony, unequivocal in terms and above suspi- 
cion in character, the circumstantial evidence 
that the draught went to the Convention with 
the words ^Hhe people" in the 3d and 5th arti- 
cles is overwhelming. 

There are some other things specified in the 
Note not of great importance, but which serve 
to show how eagerly Madison clutched at any- 
thing that would operate as a makeweight 
against Pinckney and his draught. 

Article VIII '4s remarkable also for the cir- 
cumstance that whilst it specifies the functions 
of the President, no provision is contained in 
the paper for the election of such an officer." 

97 



THE PINCKNEY DEAUGHT 

This is not a complete statement of the case. 
The article declares that ^^the executive pow- 
er" shall be vested in a President and that ^^he 
shall be elected for years." The provi- 
sions relating to the President were on their 
face incomplete. There are virtually two 
blanks left in the provision, the one relating 
to the length of the President's term of office, 
the other to the manner in which he shonld be 
chosen. The 12th resolution filled these 
blanks for a time by saying ^ ' seven years ' ' for 
the one and by **the National legislature" for 
the other. Here were *' results" arrived at in 
the Convention. That Pinckney did not fill 
these blanks in the Department copy — ^blanks 
so obvious and so easily filled — goes a great 
way to show that he did not in any place com- 
plete his draught by writing into it * * results ' ' 
arrived at in the Convention. It is a strained, 
artificial conclusion which calls an omission 
* ^ remarkable ' ' when the instrument is avowed- 
ly nothing but an incomplete, tentative draught 
prepared for the future consideration of its 
author as well as other persons. 

Madison notes ^'variances" between the 
draught in the Department and the proposi- 

98 



THE IMPKOBABILITIES 

tions and arg-ainents of Pinckney in tlie Con- 
vention. '^Tlius in article VIII" lie says, 
Pinckney provides for the impeachment of the 
President but on the 20th of July he was op- 
posed to ^^any impeachability of the Execu- 
tive." **He was sure they ought not to issue 
from the legislature who ivould in that case 
hold them as a rod over the Executive/^ But 
the draught says much more than Madison re- 
peats. *^He shall be removed from his office 
on impeachment by the House of Delegates 
and conviction in the Supreme Court/' Pinck- 
ney did not oppose that in the Convention. 
Madison on his own record clearly had no right 
to say that Pinckney ''was opposed to any im- 
peachability of the Executive." He did not 
oppose such an impeachability as his draught 
provided for viz., by the Supreme Court, and 
his reasons quoted by Madison do not apply to 
the impeachability provided in his draught. 

''In article III it is required that all money- 
bills shall originate in the first branch of the 
legislature ; which he strenuously opposed on 
the 8th of August and again on the 11th." 
Here Madison overlooked the significance of 
these dates. They are subsequent to the report 

99 



THE PINCKNEY DRAUGHT 

of the Committee of Detail by wliich report 
Pinckney's plan for the organization of thei 
Senate had been rejected. Pinckney alluded to 
this on the 11th when he said, *^The rule of 
representation in the first branch was the true 
condition to that in the second branch.'' 
Neither does it appear in Madison's Journal 
that he ' ^ strenuously opposed. ' ' On the 11th he 
*^was sorry to oppose reopening the question," 
but ^*he considered it a mere waste of time." 
On the 8th his opposition had been couched in 
three lines, ^^If the Senate can be trusted with 
the many great powers proposed, it surely can 
be trusted with that of originating money- 
bills." Pinckney 's real position in regard to 
this was clearly stated by himself and thus re- 
corded by Madison on Wednesday, June 13th ; 
* ^ Mr. Pinckney thinks the question premature. 
If the Senate should be formed on the same 
proportional representation, as it stands at 
present, they should have equal power. Other- 
wise a different principle should be intro- 
duced. ' ' How did the Senate ^ ^ stand at pres- 
ent, ' ' on June 13th. This is shown by the reso- 
lutions of the Committee of the Whole of the 
same day. ''That the right of suffrage in the 

100 



THE IMPROBABILITIES 
second branch of the national legislature ought 
to be according to the rule established for the 
first branch. '' Eesolution 8. The Senate 
therefore was ''at present," a very different 
representative body than the Senate of Pinck- 
ney's draught; and to say on these changed 
conditions and on the record of what he did 
say that he ''strenuously opposed" the very 
thing which he had adopted in his draught is a 
wild use of terms. 

"In article V, members of each house are 
made ineligible to as well as incapable of hold- 
ing any office" a provision, Madison contin- 
ues, which "was highly disapproved of by him 
on the 14th of August." 

What was this disapproval? Article V pro- 
vides that the members of each house shall not 
be eligible to office during the time for which 
they have been respectively elected, "nor the 
members of the Senate for one year after." 
This idea that a member of Congress should 
not hold, during his legislative term of office, 
an executive office which he had helped to cre- 
ate or the emoluments of which he had helped 
to increase, undoubtedly existed in many 
minds. But under the scheme embodied in the 

101 



THE PINCKNEY DEAUGHT 

Pinckney draught there was a peculiar reason 
why the ineligibility of Senators should con- 
tinue after their legislative terms of office had 
expired. That reason was because (Art. 
VIII), the Senate was to be an appointing pow- 
er. It was to ^^have sole and exclusive power 
to'' ^* appoint ambassadors, and other minis- 
ters to foreign nations, and judges of the Su- 
preme Court." Under this scheme it was ob- 
vious that a Senator should not be allowed to 
step out of office at the expiration of his term 
on one day and be appointed by his late col- 
leagues to an important office on the next day. 
It is, therefore, not a surprising thing to find 
this provision in the draught and to find it ap- 
plied only to the Senate. 

On the 14th of August Pinckney had so far 
modified his own views that he was then in fav- 
or of making the members of each House in- 
capable of holding executive salaried offices 
while they continued members, with a provi- 
sion that ''the acceptance of such office shall 
vacate their seats respectively." This having 
failed in Convention, he on the same day urged 
a general postponement of the subject ''until it 
should be seen what powers should be vested 

102 



THE IMPKOBABILITIES 

in the Senate" ^^when," he said, ''it would be 
more easy to judge of the expediency of al- 
lowing officers of State to be chosen out of that 
body." This postponement was agreed to 
nem. con. It is manifest that the idea of the 
Senate being an appointing power was still up- 
permost in his mind. He gave good reasons 
for not making ineligibility absolute; but he 
consistently adhered to the idea that the same 
person should not be both a Legislator and an 
officer of State. 

On the 14th of August Pinckney proposed to 
make members ineligible to hold any office by 
which they would receive a salary. This was 
merely a restriction on the original proposi- 
tion of the draught, a limiting of its applica- 
tion to salaried offices but leaving members 
eligible and capable of filling honorary posi- 
tions. To say that his original proposition 
was thereby ''highly disapproved" by him is 
certainly an abuse of the term "highly disap- 
proved." The objection of Madison when 
tested by his own record, the Journal, comes 
down to this : that three months or more after 
Pinckney wrote the draught, he thought it bet- 
ter to limit the Constitutional prohibition to 

103 



THE PINCKNEY DRAUGHT 

^^ salaried offices.'' This restriction was a 
trivial and a sensible modification. To infer 
from it that Pinckney then ** highly disap- 
proved" his own original proposition merely 
marks the nervous excitement which seems to 
have impelled Madison to exaggerate every 
little deviation of Pinckney from the strict let- 
ter of his draught into conclusive evidence that 
this draught never existed. 

This brings us to the extrinsic evidence on 
which Madison relied, the testimony of Pinck- 
ney against himself. 



104 



CHAPTEK IX. 

THE OBSEKVATIONS 

THE Observations of Pinckney, in Madi- 
son's estimation, fully sustained his ar- 
guments and justified Ms attacks on the verity 
of the draught in the State Department. The 
publication so entitled is a sm^all pamphlet of 
27 pages. It has the following title page : 

Observations 

on the 

PIAN OF GOVEKNMENT 

Submitted to the 
FEDEEAL CONVENTION 

in Philadelphia on the 28th of May, 1787 

By Mr. Charles Pinckney 
Delegate from the State of South Carolina 

DELIVERED AT DIFFEEENT TIMES 
IN THE COURSE OF THEIR DISCUSSIONS. 

New York. Printed 

by Francis Childs 

105 



THE PINCKNEY DEAUGHT 

Two copies of this are in the library of the 
New York Historical Society, and it is re- 
printed in Moore's American Eloquence. It 
bears no date, bnt we learn from Madison's 
letter to Washington (before quoted) that it 
must have been published before the 14th of 
October, 1787 ; that is to say immediately after 
the dissolution of the Convention on the 17th 
of September. 

Madison unquestionably relied upon this 
pamphlet as containing the highest evidence 
against the verity of the draught in the State 
Department. The anxiety which he showed to 
obtain it, and the care with which he brought 
it to the attention of those who were or who 
in the future might be interested in the mat- 
ter make it plain that he regarded the Ob- 
servations as a conservatory of admissions 
which Pinckney would not deny if he were liv- 
ing, and which his friends could not contro- 
vert now that Pinckney was dead. 

The first record we have of Madison's re- 
liance on this pamphlet is a memorandum 
found among his papers which bears no date 
but which must have been written prior to 
April 6th, 1831. 

106 



THE OBSEEVATIONS 

^'for MR. Paulding" 

''Much curiosity and some comment have 
been exerted by the marvellous identities in a 
plan of Government proposed by Charles 
Pinckney in the Convention of 1787 as pub- 
lished in the Journals with the text of the Con- 
stitution, as finally agreed to. I find among 
my pamphlets a copy of a small one entitled 
Observations on the Plan of Government sub- 
mitted to the Federal Convention, in Phila- 
delphia, on the 28th of May, by Mr. C. Pinck- 
ney, a Delegate from S. Carolina, delivered at 
different times in the Convention. 

*^The copy is so defaced and mutilated that 
it is impossible to make out enough of the 
plan, as referred to in the Observations, for a 
due comparison of it with that printed in the 
Journal. The pamphlet was printed in N. 
York by Francis Childs. The year is defaced. 
It must have been not very long after the close 
of the Convention, and with the sanction, at 
least, of Mr. Pinckney himself. It has oc- 
curred to me that a copy may be attainable at 
the printing office, if still kept up, or in some 
of the libraries or historical collections in the 

107 



THE PINCKNEY DRAUGHT 

city. When you can snatch a moment,an your 
walks with other views, for a call at such 
places, you will promote an object of some lit- 
tle interest as well as delicacy, by ascertaining 
whether the article in question can be met 
with. I have among my manuscript papers 
lights on the subject. The pamphlet of Mr. 
P. could not fail to add to them. 
^^ April, 1831.^' 

At some time subsequent to the 6th of April 
he wrote to Mr. Paulding, saying that in a 
previous letter '' I requested you to make an 
inquiry concerning a small pamphlet of 
Charles Pinckney printed at the close of the 
Federal Convention of 1787;*' and on the 6th 
of June he again wrote to Mr. Paulding, 

'^ June 6th, 1831. 
*'Dear Sie. — ^Since my letter answering 
yours of April 6th, in which I requested you 
to make an inquiry concerning a small pam- 
phlet of Charles Pinkney printed at the 
close of the Federal Convention of 1787, 
it has occurred to me that the pamphlet 
might not have been put in circulation, 

108 



THE OBSERVATIONS 

but only presented to Ms friends, etc. In that 
way I may have become possessed of the copy 
to which I referred as in a damaged state. On 
this supposition the only chance of success 
must be among the books, etc., of individuals 
on the list of Mr. Pinckney's political associ- 
ates and friends. Of those who belonged to 
N. York, I recollect no one so likely to have re- 
ceived a copy as Eufus King. If that was the 
case, it may remain with his representative, 
and I would suggest an informal resort to that 
quarter, with a hope that you will pardon this 
further tax on your kindness.'' 

On the 27th of June he wrote to Mr. Pauld- 
ing for the third time regarding the Observa- 

^'''''^'' ^^June 27th, 1831. 

''Dear Sie:— With your favor of the 20th 
instant I received the volume of pamphlets 
containing that of Mr. Charles Pinckney, for 
which I am indebted to your obliging re- 
searches. The volume shall be duly returned, 
and in the mean time duly taken care of. I 
have not sufficiently examined the pamphlet in 
question, but I have no doubt that it throws 
light on the subject to which it has relation.'' 

109 



THE PINCKIsrEY DRAUGHT 

On tlie 25t]i of November he wrote at length 
to Jared Sparks setting forth all his objec- 
tions to the draught and added: ^^ Further dis- 
crepancies might be found in the observations 
of Mr. Pinclmey, printed in a pamphlet by- 
Francis Childs, in New York, shortly after the 
close of the Convention. I have a copy too 
mutilated for use, but it may probably be pre- 
served in some of your historical reposito- 



ries. ' ' 



On the 5th of June 1835 he wrote to Judge 
Duer : ^ ' Other discrepancies will be found in a 
source also within your reach, in a pamphlet 
published by Mr. Pinckney soon after the close 
of the Convention, in which he refers to parts 
of his plan which are at variance with the docu- 
ment in the printed Journal. A friend who 
has examined and compared the two docu- 
ments has pointed out the discrepancies noted 
below. ' ' 

Then follows the list of discrepancies 
'' pointed out'' by '^ a, friend"; and in this let- 
ter he refers Judge Duer to the Ivibrary of the 
Historical Society of New York as the place 
where a copy of the Observations can be 
found. 

110 



THE OBSERVATIONS 

The following paragraphs from the Obser- 
vations contain all that bears npon the con- 
tents of the draught, and all upon which Madi- 
son relied. 

*^ There is no one, I believe, who doubts 
there is something particularly alarming in 
the present conjuncture. There is hardly a 
man in or out of office, who holds any other 
language. Our Government is despised — our 
laws are robbed of their respected terrors — 
their inaction is a subject of ridicule — and 
their exertion, of abhorrence and opposition 
— rank and office have lost their reverence 
and effect — our foreign politics are as much 
deranged, as our domestic economy — our 
friends are slackened in their affection, and 
our citizens loosened from their obedience. 
We know neither how to yield nor how to en- 
force — ^hardly any thing abroad or at home is 
sound and entire — disconnection and confu- 
sion in offices, in States and in parties, prevail 
throughout every part of the Union. These 
are facts universally admitted and lamented.'* 

''Be assured that however unfashionable 
for the moment your sentiments may be, yet, 

111 



THE PINCKNEY DEAUGHT 

if your system is accommodated to the situa- 
tion of the Union, and founded in wise and 
liberal principles, it will in time be consented 
to. An energetic government is our true 
policy, and it will at last be discovered and 
prevail. ' ' 

*' Presuming that the question will be taken 
up de novo, I do not conceive it necessary to 
go into minute detail of the defects of the pres- 
ent confederation, but request permission to 
submit, with deference to the House, the 
draught of a governmicnt which I have formed 
for the Union. The defects of the present will 
appear in the course of the examination. I 
shall give each article that either materially 
varies or is new. I well know the science of 
government is at once a delicate and difficult 
one, and none more so than that of republics. 
I confess my situation or experience have not 
been such as to enable me to form the clearest 
and justest opinions. The sentiments I shall 
offer are the result of not so much reflection as 
I could have wished. The plan will admit of 
important amendments. I do not mean at 
once to offer it for the consideration of the 

112 



THE OBSERVATIONS 

House, but have taken the liberty of mention- 
ing it, because it was my duty to do so. 

''The first important alteration is that 
of the principle of representation and the dis- 
tribution of the different powers of govern- 
ment. In the federal councils, each State 
ought to have a weight in proportion to its 
importance ; and no State is justly entitled to 
greater. A representation is a sign of the 
reality. Upon this principle, however abused, 
the Parliament of Great Britain is formed, 
and it had been universally adopted by the 
States in the formation of their legislatures." 

''In the Parliament of Great Britain as 
well as in most and the best instituted legisla- 
tures of the States, we find not only two 
branches, but in some a council of revision, 
consisting of their executive and principal of- 
ficers of government. This I consider as an 
improvement in legislation, and have there- 
fore incorporated it as a part of the system. 

"The Senate, I propose to have elected 
by the House of Delegates, upon proportiona- 
ble principles, in the manner I have stated, 
which though rotative, will give a sufficient de- 

113 



THE PINCKNEY DEAUGHT 

gree of stability and independence. The dis- 
tricts, into whicli tlie Union is to be divided, 
will be so apportioned as to give to each its 
due weight, and the Senate, calculated in this, 
as it ought to be in every government, to rep- 
resent the wealth of the nation. 

'^The executive should be appointed septen- 
nially, but his eligibility ought not to be 
limited: He is not a branch of the legisla- 
ture farther, than as a part of the council of 
revision; and the suffering him to continue 
eligible will not only be the means of ensuring 
his good behavior, but serve to render the of- 
fice more respectable. 

*^The 4th article, respecting the extend- 
ing the rights of the citizens of each State 
throughout the United States ; the delivery of 
fugitives from justice upon demand, and the 
giving full faith and credit to the records and 
proceedings of each, is formed exactly upon 
the principles of the 4th article of the present 
confederation, except with this difference, that 
the demand of the Executive of a State for 
any fugitive criminal offender shall be com- 
plied with. It is now confined to treason, 
felony, or other high misdemeanor; but as 

114 



THE OBSEEVATIONS 
there is no good reason for confining it to 
those crimes, no distinction ought to exist, and 
a State shonld always be at liberty to demand 
a fugitive from its justice, let his crime be 
what it may. 

'*The 5th article, declaring that individ- 
ual States shall not exercise certain powers, 
is also founded on the same principle as the 
6th of the confederation. 

''The next is an important alteration of 
the Federal system, and is intended to give 
the United States in Congress, not only a re- 
vision of the legislative acts of each State, but 
a negative upon all such as shall appear to 
them improper. 

''I apprehend the true intention of the 
States in uniting is, to have a firm, national 
government, capable of effectually executing 
its acts, and dispensing its benefits and protec- 
tion. In it alone can be vested those powers 
and prerogatives which more particularly dis- 
tinguish a sovereign State. The members 
which compose the superintending government 
are to be considered merely as parts of a great 
whole, and only suffered to retain the powers 
necessary to the administration of their State 

115 



THE PINCKNEY DEAUGHT 

systems. The idea whicli has been so long and 
falsely entertained of each being a sovereign 
State, mnst be given np; for it is absnrd to 
suppose there can be more than one sover- 
eignty within a government. The States 
should retain nothing more than that mere 
local legislation, which, as districts of a gen- 
eral government, they can exercise more to 
the benefit of their particular inhabitants, 
than if it was vested in a Supreme Council; 
but in every foreign concern as well as in those 
internal regulations, which respecting the 
whole ought to be uniform and national, the 
States must not be suffered to interfere. No 
act of the Federal Government in pursuance 
of its constitutional powers ought by any 
means to be within the control of the State 
Legislatures ; if it is, experience warrants me 
in asserting they will assuredly interfere and 
defeat its operation. 

^'The next article proposes to invest a 
number of exclusive rights, delegated by the 
present confederation, with this alteration: 
that it is intended to give the unqualified 
power of raising troops, either in time of 

116 



THE OBSERVATIONS 
peace or war, in any manner the Union may 
direct. It does not confine them to raise 
troops by quotas on particular States, or to 
give them the right of appointing regimental 
officers, but enables Congress to raise troops 
as they shall think proper, and to appoint all 
the officers. It also contains a provision for 
empowering Congress to levy taxes upon the 
States, agreeable to the rule now in use, an 
enumeration of the white inhabitants, and 
three-fifths of other descriptions. 

**The 7th article invests the United States 
with the complete power of regulating the 
trade of the Union, and levying such imposts 
and duties upon the same, for the use of the 
United States, as shall in the opinion of Con- 
gress, be necessary and expedient. 

'^The 8th article only varies so far from 
the present, as in the article of the Post Of- 
fice, to give the Federal Government a power 
not only to exact as much postage as will bear 
the expense of the office, but also for the pur- 
pose of raising a revenue. Congress had this 
in contemplation some time since, and there 
can be no objection, as it is presumed, in the 

117 



THE PINCKNEY DRAUGHT 

course of a few years the Post Office will be 
capable of yielding a considerable sum to the 
public treasury. 

''The 9th article, respecting the appoint- 
ment of Federal courts for deciding territorial 
controversies between different States, is the 
same with that in the confederation; but this 
may with propriety be left to the supreme ju- 
diciary. 

''The 10th article gives Congress a right 
to institute all such offices as are necessary for 
managing the concerns of the Union ; of erect- 
ing a federal judicial court for the purposes 
therein specified; and of appointing courts of 
Admiralty for the trial of maritime causes in 
the States respectively. 

"The exclusive right of coining money- — 
regulating its alloy, and determining in what 
species of money the common treasury shall 
be supplied — is essential to assuring the fed- 
eral funds. 

"In all those important questions, where 
the present confederation has made the assent 
of nine States necessary, I have made the as- 
sent of two-thirds of both Houses, when as- 
sembled in Congress, and added to the number 

118 



THE OBSEEVATIONS 
the regulation of trade, and acts for levying 
an impost and raising a revenue. 

''The exclusive right of establishing regula- , 
tions for the government of the milita of the L- 
United States, ought certainly to be vested in 
the federal council. 

''The article empowering the United States 
to admit new States into the confederacy is 
become indispensable, from the separation of 
certain districts from the original States — and 
the increasing population and consequence of 
the western territory. I have also added an 
article authorizing the United States, upon the 
petition from the majority of the citizens of 
any State or convention authorized for that 
purpose, and of the legislature of the State 
to which they wish to be annexed, or of the 
States among which they are willing to be di- 
vided, to consent to such junction or division, 
on the term mentioned in the article. 

"The Federal Government should also pos- 
sess the exclusive right of declaring on what 
terms the privileges of citizenship and natu- 
ralization should be extended to foreigners. 

"The 16th article proposes to declare that if 
it should hereafter appear necessary to the 

119 



THE PINCKNEY DEAUGHT 

United States to recommend the grant of any 
additional powers, that the assent of a given 
number of the States shall be sufficient to in- 
vest them and bind the Union as fully as if 
they had been confirmed by the legislatures of 
all the States. The principles of this, and the 
article which provides for the future altera- 
tion of the Constitution by its being first 
agreed to in Congress, and ratified by a cer- 
tain proportion of the legislatures, are pre- 
cisely the same. 

< i There is also in the articles a provision re- 
specting the attendance of the members of both 
Houses; it is proposed that they shall be the 
judges of their own rules and proceedings, 
nominate their own officers, and be obliged, 
after accepting their appointments, to attend 
the stated meetings of the legislature ; the pen- 
alties under which their attendance is required, 
are such as to insure it, as we are to suppose 
no man would willingly expose himself to the 
ignominy of a disqualification. 

**The next article provides for the privilege 
of the writ of habeas corpus — the trial by jury 
in all cases, criminal as well as civil — the free- 
dom of the press and the prevention of reli- 

120 



THE OBSEEVATIONS 

gions tests as qualifications to offices of trust 
or emolument. 

''There is also an authority to the national 
legislature, permanently to fix the seat of 
the general government, to secure to authors 
the exclusive right to their performances and 
discoveries, and to establish a Federal Uni- 
versity. 

''There are other articles, but of subordi- 
nate consideration. In opening the subject, 
the limits of my present observations would 
only permit me to touch the outlines ; in these 
I have endeavored to unite and, apply, as far 
as the nature of our Union would permit, the 
excellencies of such of the States' Constitu- 
tions as have been most approved. 

"I ought again to apologize for presuming 
to intrude my sentiments upon a subject of 
such difficulty and importance. It is one that 
I have for a considerable time attended to. 
I am doubtful whether the convention will, at 
first be inclined to proceed as far as I have in- 
tended; but this I think may be safely as- 
serted, that upon a clear and comprehensive 
view of the relative situation of the Union, 
and its members, we shall be convinced of the 

121 



THE PINCKNEY DEAUGHT 

policy of concentring in the federal head, a 
complete supremacy in the affairs of govern- 
ment; leaving only to the States such powers 
as may be necessary for the management of 
their internal concerns." 

The first comment to be made on this speech 
of Pinckney's is that it was never made, and 
that no speech whatever was made hy him 
when he presented his draught to the Conven- 
tion. 

Upon this question of fact there are two wit- 
nesses, Madison and Yates. The evidence 
which they have left to us is negative and posi- 
tive, the one showing inferentially, what could 
not have occurred in the Convention on the 
29th of May 1787 and the other stating posi- 
tively what did occur ; the one absolutely silent 
as to any speech by Pinckney ; the other telling 
us that ^^Mr, Pinckney a member from South 
Carolina then added that he had reduced his 
ideas of a new government to a system ivhich 
he then read," 

Madison has written for us an account of 
the manner in which he took his notes and 
wrote out his Journal — a most interesting ac- 
count, showing us the method he pursued, the 

122 



THE OBSEEVATIONS 
efforts which he made, and reminding ns how 
much we owe him for his fidelity to his self- 
imposed task. 

''The curiosity I had felt during my re- 
searches into the history of the most distin- 
guished confederacies, particularly those of 
antiquity, and the deficiency I found in the 
means of satisfying it, more especially in what 
related to the process, the principles, the rea- 
sons, and the anticipations, which prevailed 
in the formation of them, determined me to 
preserve, as far as I could, an exact account of 
what might pass in the Convention whilst ex- 
ecuting its trust ; with the magnitude of which 
I was duly impressed, as I was by the grati- 
fication promised to future curiosity by an 
authentic exhibition of the objects, the opin- 
ions, and the reasonings from which the new 
system of government was to receive its pe- 
culiar structure and organization. Nor was I 
unaware of the value of such a contribution to 
the fund of materials to the history of a Con- 
stitution on which would be staked the happi- 
ness of a people great even in its infancy, and 
possibly the cause of liberty throughout the 
world. 

123 



THE PINCKNEY DEAUGHT 

'*In pursuance of the task I had assumed, 
I chose a seat in front of the presiding mem- 
ber, with the other members on my right and 
left hands. In this favorable position, for 
hearing all that passed, I noted in terms legi- 
ble, and in abbreviations and marks intelli- 
gible to myself, what was read from the chair 
or spoken by the members; and losing not a 
moment unnecessarily between the adjourn- 
ment and reassembling of the Convention, 
I was enabled to write out my daily notes 
during the session, or within a few finish- 
ing days after its close, in the extent and 
form preserved, in my own hand, on my 
files. 

^^In the labor and correctness of this, I was 
not a little aided by practice, and by a famil- 
iarity with the style and the train of observa- 
tion and reasoning which characterized the 
principal speakers. It happened, also, that I 
was not absent a single day, nor more than 
a casual fraction of an hour in any day, so 
that I could not have lost a single speech, un- 
less a very short one," 

Yates was at the time of writing his Min- 
utes 49 years of age. During the Eevolution 

124 



THE OBSEKVATIONS' 

he had written political essays highly esteemed 
over the signature of the Eongh Hewer. He 
had been for eleven years a judge of the 
Supreme Court of New York — a judge of the 
old school before the days of stenographers 
and printed arguments and was well trained 
in taking notes of what counsel said. 

The Minutes of Yates are manifestly the 
work of a man accustomed to take down the 
ideas rather than the words of public speak- 
ers. His reports of the debates are briefer 
than Madison's showing much less of the re- 
porter and much more of the lawyer or judge 
accustomed to analyze and to note the scope 
and sense of an argument. His report of the 
chief speech of Pinckney, that of June 25th, 
when compared with the full speech written 
out by Pinckney for Madison is a remarkably 
clear and accurate and full abstract. It is 
also valuable as giving us an abstract of the 
conclusion of the speech which Pinckney neg- 
lected to furnish. Madison says in his letter . 
to Judge Duer, ''Mr. Yates's notes as you ob- 
serve are very inaccurate; they are also in 
some respects grossly erroneous." There are 
indeed mistakes resulting from his non-ac- 

125 



THE PINCKNEY DKAUGHT 

quaintance with the delegates; and especially 
in his confusing the names of the two Pinck- 
neys, the first name of each being the same as 
the first name of the other and both being dele- 
gates from the same State. But be that as 
it may, Yates correctly characterized the 
speech of Eandolph as '^long and elaborate," 
and Pinckney's draught as a ^'system" of a 
*^new government"; and he certainly knew 
enough to distinguish between the delivery of a 
long speech and the reading of a formal docu- 
ment. 

The fact therefor must be regarded as es- 
tablished as firmly as any fact recorded in the 
annals of the Convention that on the day when 
Pinckney presented his draught to the Con- 
vention he did not deliver and could not have 
delivered a speech making 27 pages of printed 
matter. 

There is another fact to be considered in 
connection with the foregoing. Between the 
opening statements of the Observations and 
the title to the pamphlet there is a flat contra- 
diction. In the speech he says expressly that 
the *^plan will admit of important amend- 
ments"; that he does ^^not mean to offer it for 

126 



THE OBSERVATIONS 

the consideration of the House"; that he has 
''taken the liberty of mentioning it because it 
was his duty to do so." In the title to the 
pamphlet he says, ''Plan of Government sub- 
mitted to the Federal Convention in Phila- 
delphia on the 28th of May 1787." It is plain 
that the speech and its title were written at 
different times and that in this the two are ir- 
reconcilable. It is also plain that Pinckney 
when he wrote a title for the printer in New 
York had forgotten the detail of the contents 
of the speech and did not take the trouble to 
examine it. We may therefore conclude that 
the two events were far apart, the one having 
taken place in Charleston before the assem- 
bling of the Convention and the other taking 
place in New York when the publication of 
the speech required that a title should be 
given to it. 

Furthermore the title to the speech contains 
a significant error in saying that the plan of 
government was submitted to the Convention 
"on the 28th of May" ; for the first days of the 
Convention were not days to be quickly for- 
gotten. 

The day fixed for the meeting of the dele-. 

127 



THE PINCKNEY DRAUGHT 

gates in Convention was Monday, May 14tli 
1787. "Washington, notwithstanding his pain- 
ful illness during the winter and the expected 
death of his mother was among the first who 
arrived in Philadelphia. On the 27th of April 
he had written to Knox, ' ' Though so much af- 
flicted with a Kheumatick complaint (of which 
I have not been entirely free for Six months) 
as to be under the necessity of carrying my 
arm in a Sling for the last ten days, I had 
fixed on Monday next for my departure, and 
had made every necessary arrangement for 
the purpose when (within this hour) I am 
called by an express, who assures me not a 
moment is to be lost, to see a mother and only 
sister (who are supposed to be in the agonies 
of Death) expire ; and I am hastening to obey 
this Melancholy call, after having just buried 
a Brother who was the intimate companion of 
my youth, and the friend of my ripened age. 
This journey of mine then, 100 miles, in the 
disordered frame of my body, will, I am per- 
suaded, unfit me for the intended trip to Phila- 
delphia. ' ' 

But Washington, though he knew it not, was 
then approaching the verge of his third cycle 

128 



THE OBSEEVATIONS 

of illustrious service rendered to his country 
— ''the country he assembled out of chaos." 

Madison writing to Jefferson, the.n in Paris, 
on Tuesday, the 15th of May, happily re- 
corded the fact that Washington, true to 
his life record, was on the ground when he 
should have been: ^'Monday last was the day 
for the meeting of the Convention. The num- 
ber as yet assembled is but small. Among the 
few is General Washington who arrived on 
Sunday evening, amidst the acclamations of 
the people, as well as more sober marks of the 
affection and veneration which continue to be 
felt for his character." 

But a quorum of lesser men did not appear 
until Friday May 25th. On that day nine 
States were represented by twenty-nine dele- 
gates among whom was Charles Pinckney on 
whose motion a committee was appointed, of 
which he was one, to prepare standing rules 
and orders. The only other business was the 
election of Washington as President and Ma- 
jor William Jackson as Secretary. On Mon- 
day May 28th the Convention next met when 
''Mr. Wythe, from the committee for prepar- 
ing rules made a report which employed the de- 

129 



THE PINCKNEY DEAUGHT 

liberations of this day.'' Tuesday May 29tli 
was the great day when Eandolph ^ ' opened the 
main business" and presented the Virginia 
resolutions, and Pinckney ^4aid before the 
House the draught of a Federal Government. ' ' 
These were not days to be easily confounded. 
But between the presentation of the draught 
to the Convention and the writing of the title 
for the printer in New York four months had 
elapsed crowded with labor and excitement, 
and Pinckney had forgotten the date of the 
most eventful day of his life. The error of 
this date means a great deal. 

In his letter to the Secretary of State cover- 
ing the draught in the Department, Pinckney 
says that he has then four or ^ve draughts 
of the Constitution in his possession. It is 
certain that the draught in the Department 
conforms much more closely to the draught 
which he presented to the Convention than 
to the draught which he describes in the Obser- 
vations. If we consider the facts established 
(as we must) that the Observations were writ- 
ten before the assembling of the Convention, 
that they were written many months before 
their publication, that they were not examined 

130 



THE OBSEEVATIONS 

or revised when they were published, it is 
easily within the range of possibilities, if not 
of probabilities, that the draught which formed 
the ^'text of the discourse" was one of the four 
or ^ve which Pinckney had drawn at various 
times and was not the one which he finally sub- 
mitted to the Convention. 

If the Observations were what they pretend 
to be the text of a real speech actually spoken 
at the time when Pinckney was about to pre- 
sent his draught to the Convention they would 
be very good secondary evidence of the con- 
tents of the paper which he held in his hand 
and which he then and there presented, and 
thereby parted company with. But a speech 
which was never spoken to suppositional audi- 
tors who never heard it, is not a public decla- 
ration of the contents of another paper. The 
Observations are not a speech because they 
are cast in the form of a speech. They 
are simply a paper which may have been writ- 
ten in Charleston before the assembling of the 
Convention, or (possibly) in New York after 
the Convention had been dissolved, and when- 
ever written Pinckney may have had before 
him another of the four or five constitutions 

131 



THE PINCKNEY DEAUGHT 

which he had draughted. With the uncovering 
of the fact that this paper was not contempo- 
raneous, and that it did not necessarily refer 
to the particular copy of the draught which 
Pinckney presented to the Convention on the 
29th of May, the supposed value of the Obser- 
vations as evidence to impeach the integrity 
of the draught in the State Department is 
blown to pieces. 

If this were a suit between Madison and 
Pinckney it might be held that Pinckney would 
be estopped from questioning the veracity of 
the paper which he wrote and made public, or 
the actuality of the facts which it sets forth. 
But an estoppel which in the words of Coke, 
'* conclude th a man to alleage the truth" does 
not extend to the student of Constitutional his- 
tory. He is not a party to that record and is 
at liberty to use it for what it may be worth 
against Pinckney or for Pinckney, to over- 
throw the draught or to substantiate the 
draught — to use it in any way which will tend 
to clear the situation from error, and authen- 
ticate the true history of the Constitution. 

Madison in his ^^Note to the Plan'' re- 
garded article VIII as ^* remarkable also for 

132 



THE OBSERVATIONS 

the circumstance that whilst it specifies the 
functions of the President, no i^rovision is 
coiltained in the paper for the election of such 
an officer." The plain unquestionable pur- 
pose of Madison when so writing was to im- 
press upon the American mind the improb- 
ability, the almost impossibility, of Pinckney's 
having neglected to provide for the election of 
the President while actually establishing the 
office and defining the functions of the officer ; 
and hence that the paper which is so remark- 
able for the omission cannot be a true copy of 
the one presented to the Convention ; and the 
inevitable inference from this is that the real 
draught, the one presented to the Convention 
on the 29th of May contained and must have 
contained, and could not have overlooked the 
needed provision declaring how the President 
should be chosen. 

The choosing of the President by means of 
electoral colleges in which each State should 
have a proportionate power equal to its total 
representation in the two houses of Congress 
was one of the notable compromises between 
the large and small States ; and what Madison 
says must excite the curiosity of the Constitu- 

133 



THE PINCKNEY DEAUGHT 

tional student to know in wliat manner Pinck- 
ney provided in Ms draught for the choosing 
of the President and whether he attempted a 
compromise. The original draught is lost; 
but here Madison appears with the Observa- 
tions which he fortunately saw in 1787 and 
which he fortunately remembered in 1831 and 
which, remembering, he brought to light and 
made an authority; and these Observations, 
according to Madison, presumptively set forth 
what the original draught contained so fully 
and accurately that upon the faith of them we 
can and must reject the copy of the draught 
which Pinckney produced and placed in the 
State Department. Therefore we may turn to 
the Observations with unusual interest to 
ascertain whether Pinckney provided, and in 
what manner he provided, for the choosing of 
the President. 

We find that the Observations are as silent 
as the draught in the State Department. 
They are not more silent however. If the 
Observations said nothing and were abso- 
lutely silent on the subject of the President, it 
might be a casual oversight of the writer. 
But the Observations agree with article VIII; 

134 



THE OBSERVATIONS 

both recognize the Execntive as vested in one 
person; both limit his term of office, the one 
to seven, the other to — ^years; both expressly 
declare that he shall be re-eligible; both are 
silent as to the means by which he shall be 
chosen. The Observations here are little more 
than a paraphrase of article VIII. Madison 
regarded the omission to provide for so vitally 
important a thing as the choosing of the Presi- 
dent as ''remarkable"; but the more remark- 
able the omission, the more significant the 
coincidence. 

The explanation of Pinckney's conduct and 
of the contradictions between his statements 
in the Observations and the facts appearing 
on the records of the Convention, including in 
the term the Madison Journal and the Yates 
Minutes is, I think, the following: 

The first business day of the Convention, 
probably, was the most impressive day of all 
its sittings. There were less than forty dele- 
gates present but among them were the most 
distinguished men of the country; Washington, 
Hamilton, Eufus King, David Brearly, both 
Robert and Gouverneur Morris, George Read, 
George Mason, George Wythe, John Rutledge, 

135 



THE PINCKNEY PEAUGHT 

John Dickinson and Elbridge Gerry. A pain- 
ful anxiety existed concerning everything 
which lay before them — the method of pro- 
cedure, the specific subjects to be considered, 
the prejudices of the different States, the 
views and plans and projects of the different 
members. Eandolph, as heretofore has been 
said, opened the great business which was to 
result either in the formation of a National 
government or in the dissolution of the feeble 
Confederation which existed, by the presen- 
tation of the abstract propositions which the 
delegates from Virginia had formulated for 
the consideration of the Convention, and by a 
masterly address in which he set forth the 
perils of the hour and the difficulties to be 
overcome. When he concluded his solemn and 
philosophical exposition of the impending 
problems the Convention adjourned as well it 
might. 

Pinckney must have been impressed by this. 
He had studied the field long and intelligently ; 
but there were now waters before him which 
were beyond his depth — difficulties which he 
had not considered; prejudices and jealousies 

136 



THE OBSEEVATIONS 

for which he had formulated no compromise. 
It was not the time for the man believed 
to be the youngest member to harangue the 
Convention on his scheme for a new gov- 
ernment. 

Pinckney unquestionably had prepared a 
written speech in his study in Charleston. It 
was his strategic purpose to deliver the speech 
at the opening of the Convention and draw 
forth expressions of opinion concerning his 
scheme for a National government, after 
which he would modify his plan and when 
modified to suit himself or to suit a majority 
of the members, he would present it. But 
when the time came to speak he saw that the 
Convention was in no humor to listen to an 
oration about his plan, and that the business 
before them would be the consideration and 
discussion of abstract propositions one by one 
as set forth in the Virginia resolutions, and 
that no plan would be considered until the 
delegates should learn by intelligent discus- 
sion what they wanted to formulate. He 
therefore wisely reversed his strategy, with- 
holding the speech but presenting the draught, 

137 



THE PINCKNEY DRAUGHT 

thereby placing himself on the record and 
establishing what in patent law would be 
called priority of invention. 

After the great work was done and the Con- 
stitution had gone forth to the world Pinck- 
ney knew that his draught was buried in the 
secrecy of the proceedings. He too, like many 
another effusive young man, may have 
thought his speech too good to be lost. Cer- 
tainly he could not resist the temptation of 
revealing what he had written and of record- 
ing the great part he had played among the 
eminent actors in the Convention. He avoid- 
ed violating the pledge of secrecy by revealing 
no act or proceeding of the Convention, not 
even that his plan had been presented and re- 
ferred. And it is fair to say that while he 
acted like a boy, he also gave out the full 
record in a manly way. The absurdities in 
his draught, as some of his provisions must 
have seemed to many intelligent men, were set 
forth; the provisions which failed were set 
forth; the propositions which he himself had 
abandoned and opposed were set forth. 
There was no tampering with the record. 
There are passages in some of his imperfectly 

138 



THE OBSERVATIONS 
reported speeches in the Convention which 
bear some resemblance to his discursive rhe- 
torical flights in the Observations, and these 
he may have thought justified the title with 
which he prefaced the publication. The two 
lines on the title page, ''Delivered at different 
Times in the course of their Discussions," are 
in very small type and appear much as if they 
had been crowded into a printer's proof — as 
if they had been an afterthought. But how- 
ever that may be one thing is certain, that the 
speech setting forth the contents of his plan 
was never made in the Convention. 

The Observations sustain the draught in the 
State Department in matters of substance, but 
not in order and arrangement. The Observa- 
tions also allude to provisions which are not in 
the draught in the State Department, provi- 
sions which may or may not have been in the 
draught which was presented to the Conven- 
tion; and these I shall subsequently examine. 
As to the variance in order and arrangement 
there are two things which should be consid- 
ered: First: as a matter of antiquarian re- 
search it would be interesting and satisfactory 
to ascertain that the one draught was a fac- 

139 



THE PINCKNEY DRAUGHT 

simile or exact duplicate of the other; but 
where the purpose of the inquiry (as in this 
case) is to ascertain what contributions the 
draught of Pinckney made to the Constitution 
of the United States, it is wholly immaterial 
whether one provision followed another or 
preceded it, or was far removed from it. 
The second thing to be remembered is that the 
draught of the Committee of Detail, so far as 
it agrees in order and arrangement with the 
draught in the State Department furnishes us 
with presumptive evidence of the order and 
arrangement in the draught which was pre- 
sented to the Convention. A comparison of 
the two will show that the variances are so 
trivial that they are not worthy of further con- 
sideration. 

As we have seen (chapter VI) Madison did 
not cite the Observations in the '^Note of Mr. 
Madison to the plan of Charles Pinckney,'' 
but did prepare a footnote for the Note to be 
appended to and published with it by his 
future editor who he then believed would be 
Mrs. Madison. "Why he did not cite or set 
forth in his own Note the ^^ striking discrep- 
ancies'' set forth in the footnote, but planned 

140 



THE OBSERVATIONS 
and arranged that tliey should be brought be- 
fore the public by his editor has seemed inex- 
plicable hitherto. The reason is now plain — 
he did not wish to assume the responsibility 
of citing the pamphlet of Pinckney because he 
knew that it consisted of a speech which was 
never made. 

Madison cited the Observations and the 
eighth article and the fifth article of Pinck- 
ney 's draught to secure its condemnation; but 
of each he might say as Balak the son of Zip- 
por said to the prophet of old, ^'I took thee to 
curse mine enemies and behold thou hast 
blessed them!" He hunted for the Observa- 
tions ; he found them ; he brought them to the 
knowledge of men, he appealed to them, he 
made them an authority by which Pinckney 
should be judged out of his own mouth; and 
lo ! they furnish the strongest confirmation of 
the verity of the draught which he attacked. 

The Observations seem to have been a fate- 
ful thing, fatal to whichever party relied 
upon them. Madison exhumed them and be- 
lieved that they would destroy the pretensions 
of Pinckney and vindicate himself — and they 
have but demonstrated the superficiality of his 

141 



THE PINCKNEY DEAUGHT 

own investigation and the baselessness of his 
deductions. Pinckney fearing that the part 
which he had played in the Convention would 
never be known, that his great contribution to 
the Constitution might never receive so much 
as the notice of men, impelled by his boyish 
egoism and by what Madison called with ref- 
erence to another contemporaneous publica- 
tion, *^his appetite for expected praise, '' im- 
properly laid them before the world — and they 
have done more than any other one thing to 
smirch his good name and bury in oblivion the 
great work of his life. 



142 



CHAPTER X 

THE SILENGE OF MADISON" 

T^"P to this point the draught in the State 
1^ Department has been considered pre- 
cisely as Madison desired it should be consid- 
ered; that is to say upon his objections. The 
inquiry moreover has been confined to the 
final indictment which he drew up, to-wit, the 
*'Note of Mr. Madison to the Plan of Charles 
Pinckney," and to the evidence which he ad- 
duced to sustain it, to-wit Pinckney's Obser- 
vations and letter and Madison's Journal of 
the Convention. But there is another chapter 
which must be considered, a chapter of facts 
and circumstances forming an unseen part of 
the strategy which his cautious policy sup- 
plied. 

In his letters to Sparks and the others as 
in the final ''Note,'' there is a studious com- 
parison instituted between the draught in the 
State Department and the Constitution itself. 
There is also an argument implied that the 

143 



THE PINCKNEY DRAUGHT 

draught in the Department cannot possibly be 
identical with the draught presented to the 
Convention because it contains some provi- 
sions which Pinckney opposed in the Conven- 
tion. A student whose inquiries were limited 
to early editions of Madison's Writings might 
draw from them two extenuating inferences, 
the first of which would be that the weakened 
memory of age and infirmity had failed to 
bring before Madison the proper instrument 
for comparison, the draught of the Committee 
of Detail ; the second that he had never heard 
of Pinckney 's letter to the Secretary of State 
and knew not that Pinckney had notified the 
Secretary that the copy which he sent was not 
a literal reproduction of the lost draught and 
that it, like the original, contained provisions 
which on further reflection he had opposed in 
the Convention. 

In the spring of 1830 Mr. Jared Sparks 
passed a week with Madison at Montpelier 
and on his return to Washington sent to him 
the following letter : 

'* Washington, May 5th, 1830. 
''Since my return I have conversed witli 

144 



THE SILENCE OF 'MADISON 

Mr. Adams concerning Charles Pinckney's 
draught of a constitution. He says it was fur- 
nished by Mr. Pinckney, and that he has never 
been able to hear of another copy. It was 
accompanied by a long letter (written in 1819) 
now in the Department of State, in which Mr. 
Pinckney claims to himself great merit for 
the part he took in framing the constitution. 
A copy of this letter may doubtless be pro- 
cured from Mr. Brent, should you desire to 
see it. Mr. Adams mentioned the draught 
once to Mr. Eufus King, who said he remem- 
bered such a draught, but that it went to a 
committee with other papers, and was never 
heard of afterwards. Mr. King's views of 
the subject, as far as I could collect them from 
Mr. Adams, were precisely such as you ex- 
pressed.'' 

Here it may be noted that what Mr. Adams 
heard from Mr. King is recorded in his 
Memoirs, May 4, 1830, Vol. VIII, p. 225. It 
is only what Sparks reported to Madison. 
Mr. King had not seen the draught, and had 
not heard any one narrate what its provisions 
were. Indeed his doubts and suspicions seem 

145 



THE PINCKNEY DEAUGHT 

to have been founded on no other fact than 
that he did not hear it talked about. Like 
Madison, he was a witness who could testify 
to nothing, not even to hearsay. 

On the 24th of May, 1831, Mr. Sparks, who 
was then at work on his life of Gouveneur 
Morris, again wrote to Madison. 

''Boston, May 24, 1831. 
''In touching on the Convention, I shall 
state the matter relating to Mr. Pinckney's 
draught, as I have heard it from yon, and 
from Mr. Adams as reported to him by Mr. 
King. Justice and truth seem to me to re- 
quire this exposition. I shall write to Charles- 
ton, and endeavor to have the draught in- 
spected, which was left by Mr. Pinckney. 
Your explanation, that he probably added par- 
ticulars as they arose in debate, and at last 
forgot which was original and what super- 
added, is the only plausible way of accounting 
for the mystery, and it may pass for what it is 
worth. Should anything occur to you, which 
you may think proper to communicate to me 
on the subject, I shall be well pleased to re- 
ceive if 

146 



THE SILENCE OF MADISON 

Madison felt so solicitous about the inquiry 
in Charleston that on the 21st of June he 
wrote to Sparks, asking to be informed of the 
result ''as soon as it is ascertained." 

But on the 16th of June Sparks had written 
to Madison the following letter which could 
not have reached him when he wrote on the 
21st. 

'' Boston, June 16th, 1831. 

''I have procured from the Department of 
State a copy of the letter from Mr. Charles 
Pinckney to Mr. Adams, when he sent his 
draught for publication. This letter is so 
conclusive on the subject that I do not think it 
necessary to make any further inquiry. It is 
evident, that the draught, which he forwarded, 
was a compilation made at the time from loose 
sketches and notes. The letter should have 
been printed in connexion with the draught. I 
imagine Mr. Pinckney expected it. He does 
not pretend that this draught was absolutely 
the one he handed into the Convention. He 
only 'believes' it was the one, but is not cer- 
tain. 

"Should you have leisure, I beg you will 
favor me with your views of this letter. It 

147 



THE PINCKNEY DRAUGHT 

tonclies npon several matters respecting the 
history and progress of the Convention. Do 
these accord with yonr recollection? I wonld 
not weary or trouble yon, but when yon recol- 
lect that there is no other fountain to which 
I can go for information, I trust you will par- 
don my importunity. * ' 

When Sparks wrote his hasty letter of June 
16th he was evidently writing under two mis- 
apprehensions. The first was that he sup- 
posed the question involved was whether the 
draught on file was an exact copy of the lost 
original; the second was that its verity de- 
pended entirely on Pinckney's accompanying 
letter. To his inquiry what did Madison 
think of that letter, Madison made no reply. 

But in the course of the next five months 
Sparks cleared his mind of the above misap- 
prehensions and freed himself from the 
authority of Madison's opinion; and his 
strong and well trained mind analysed the 
facts involved and grasped the real problem 
of the case. This analysis and this problem 
he set clearly before Madison in the following 
letter. 

148 



THE SILENCE OF MADISON 

*'BosToi^, November 14th, 1831. 

''My mind has got into a new perplexity 
about Pinckney's Draught of a Constitution. 
By a rigid comparison of that instrument with 
a Draught of the Committee reported August 
6th they are proved to be essentially, and 
almost identically, the same thing. It is im- 
possible to resist the conviction, that they 
proceeded from one and the same source. 

''This being established, the only questiqn 
is, whether it originated with the committee, 
or with Mr. Pinckney, and I confess that 
judging only from the face of the thing my im- 
pressions incline to the latter. Here are my 
reasons. 

''1. All the papers referred to the commit- 
tee were Randolph's Eesolutions as amended, 
and Patterson's Resolutions and Pinckney 's 
Draught without having been altered or con- 
sidered. The committee had them in hand 
nine days. Their Report bears no resem- 
blance in form to either of the sets of resolu- 
tions, and contains several important provi- 
sions not found in either of them. Is it prob- 
able that they would have deserted these, 
particularly the former, which had been exam- 

149 



THE PINCKNEY DEAUGHT 

ined seriatim in the convention, and struck ont 
an entirely new scheme (in its form) of which 
no hints had been given in the debates? 

^^2. The language and arrangement of the 
Eeport are an improvement upon Pinckney's 
Draught. Negligent expressions are correct- 
ed, words changed and sentences broken for 
the better. In short, I think any person ex- 
amining the two for the first time, without a 
knowledge of circumstances, or of the bearing 
of the question, would pronounce the Com- 
mittee's Eeport to be a copy of the Draught, 
with amendments in style, and a few unim- 
portant additions. 

**3. If this conclusion be not sound, it will 
follow that Mr. Pinckney sketched his draught 
from the Committee's Eeport, and in so artful 
a manner as to make it seem the original, a 
suspicion I suppose not to be admitted against 
a member of the Convention for forming the 
Constitution of the United States. 

^^ Will you have the goodness to let me know 
your opinion ? If I am running upon a wrong 
track I should be glad to get out of it, for I 
Rke not devious ways, and would fain have 
light rather than darkness. 

150 



THE SILENCE OF MADISON 
*'P. S.—You may be assured, Sir, that I 
have no intention of printing anything on this 
subject, nor of using your authority in any 
manner respecting it. I am aware of the deli- 
cate situation in which such a step would 
place you, and you may rely upon my discre- 
tion. I am greatly puzzled, however, in 
respect to the extraordinary coincidence be- 
tween the two draughts. Notwithstanding 
my reasons above given, I cannot account for 
the committee's following any draught so 
servilely, especially with Kandolph's Eesolu- 
tions before them, and Randolph himself one 
of their number. — I doubt whether any clear 
light can be gained, till Pinckney's original 
draught shall be found, which is probably 
among the papers of one of the committee. It 
seems to me that your secretary of the conven- 
tion was a very stupid secretary, not to take 
care of these things better, and to make a bet- 
ter Journal than the dry bones that now go by 
that name.'' 

This letter set forth the real elements of the 
case, elements incontrovertible and absolutely 
certain — that Pinckney's draught was re- 

151 



THE PINCKNEY DRAUGHT 

f erred to the Committee of Detail ; that it was 
never considered in the Convention; that the 
period within which the Committee framed 
their draught was a brief one; that the Com- 
mittee 's draught bears no resemblance in form 
to the resolutions of the Convention and con- 
tains provisions not found in them; that the 
Committee so departed from the resolutions, 
though Randolph himself was one of their 
number, and struck out an entirely new 
scheme in form of which no hint had been 
given in the debates and that the Committee's 
draught in form, language and arrangement 
appears to be a copy of Pinckney's with 
amendments and additions. 

From these sure premises Sparks deduced 
two alternative conclusions ; ' * I think any per- 
son examining the two [draughts] for the first 
time without a knowledge of the circumstances 
or of the bearing of the question would pro- 
nounce the Committee's report to be a copy of 
the draught with amendments in style and a 
few unimportant additions," ^^or that Mr. 
Pincliuey sketched his draught from the Com- 
mittee^ s^ and in so artful a manner as to make 
it seem the original, a suspicion I suppose not 

152 



THE SILENCE OF MADISON 

to be admitted against a member of the con- 
vention/' 

In the second clause of the latter alterna- 
tive Sparks with admirable sagacity applied 
the most delicate test that could be applied 
to the matter. He brings the dilemma down 
to this : The Committee must have used Pinck- 
ney's draught or Pinckney must have sketched 
his draught from the Committee's; and more 
than that, he must have sketched it ^^in so 
artful a manner as to 7nake it seem the 
original/' 

When one instrument is fashioned after an- 
other the natural and even unconscious action 
of the mind is to correct and improve. It is 
a going forward toward a desirable result. 
To fashion the second instrument after the 
first but in such a manner that in many details 
there would be an unfailing inferiority would 
be a going backward. This . inferiority in 
detail runs through the Pinckney draught as 
has repeatedly been shown before. When 
Sparks wrote the word ''artful" he used the 
right word, the word which controlled the situ- 
ation — ''in so artful a manner as to make it 
seem the original" most accurately defines 

153 



THE PINCKNEY DEAUGHT 

what Pinckney did in Charleston in 1818 if he 
then fabricated a new draught. 

Of course such a fabrication was possible 
but it would have required a literary forger 
with a genius for literary forgery to have 
taken the Committee's draught and given 
these artless imperfections — these delicate 
touches of inferiority to the copy for the State 
Department. 

To the specific charge that Pinckney must 
have sketched his draught '4n so artful a 
manner as to make it seem the original'' if it 
was not what he had represented it to be, 
Madison made no reply. Sparks had nar- 
rowed the issue to this, '*Did the Committee 
follow Pinckney 's draught or did Pinckney 
use the Committee's?" But Madison evaded 
the issue. Sparks had shown that the Com- 
mittee did not confine themselves to results 
arrived at after discussion in the Convention; 
but that they had incorporated in their 
draught * important provisions not found in 
either" set of resolutions, and he called Madi- 
son's attention *^to the extraordinary coinci- 
dence l)etween the two draughts;" and he 
added that he could not ^ * account for the Com- 

154 



THE SILENCE OF MADISON 

mittee following any draught so servilely, es- 
pecially with Eandolph's resolutions before 
them, and Eandolph himself one of their 
number." It was for Madison then to meet 
this issue and show definitely where the Com- 
mittee got the many new provisions of their 
draught, important and unimportant, if 
they did not get them from the Pinckney 
draught. 

On the 25th of November, 1831, Madison re- 
plied at length to Sparks' letter but he said 
not a word about the draught of the Commit- 
tee or of Pinckney 's letter to the Secretary of 
State. His answer was in effect, ^^Impos- 
sible!" 

Sparks did not acknowledge the receipt of 
the letter until the 17th of January, 1832, and 
then the acknowledgment was called out by a 
letter from Madison of January 7th. He 
yielded a reluctant assent, manifestly in def- 
erence to Madison, that ''this letter seems to 
me conclusive, but" (he immediately adds), ''I 
am still a good deal at a loss about the first 
draught of the Committee. The history of 
the composition of the draught would be a 
curious item in the proceedings of the Conven- 

155 



THE PINCKNEY DEAUGHT 

tion.'' Here Sparks again put his finger on 
one of the things that needed explanation, 
*^the composition of the draught." His sa- 
gacious mind grasped the fact that the struc- 
ture of the draught of the Constitution — of 
the Constitution itself, would indeed be a 
** curious item in the proceedings of the Con- 
vention." It was original work in style, 
order, details and arrangement; **a curious 
item" indeed! Whose was the hand that 
sketched it? When Sparks was so near the 
end of the matter and on the path which led to 
the end, it seems almost incredible that he did 
not take one step forward. If he had he 
would have solved the problem and dispelled 
the mystery. 

Madison's letter of November 25th seems 
to have been written for posterity as well as 
for the man to whom it was sent. Its untold 
object manifestly was to divert attention from 
the draught of the Committee and to direct 
comparison to the Constitution itself. Three 
years later in his letter to Judge Duer he 
reiterated what he had said to Sparks, and 
again he said nothing upon the point which 
Sparks had plainly placed before him. Final- 

156 



THE SILENCE OF MADISON 

ly when he prepared his Note to the Plan, he 
for a third time, was silent on the primary 
issue in the case, Did the Committee follow 
Pinckney's draught or did Pinckney surrep- 
titiously use the Committee's? 

This silence of Madison's is a most curious 
instance of his sagacious and adroit manage- 
ment. It was not his business to direct atten- 
tion to this troublesome final issue and he did 
not. The ''Note of Mr. Madison to the Plan 
of Charles Pinckney ' ' would be published ; the 
letters of Sparks to himself might never see 
the light. Indeed I can give this tribute to 
his adroitness — that this book was written in 
the belief that Madison never knew of Pinck- 
ney 's letter to the Secretary of State, and 
that his weakened mind had overlooked the 
draught of the Committee of Detail; and it 
was not till the book was finished that I found 
the letters of Sparks above quoted and was 
compelled thereby to supply this chapter, and 
modify what I had elsewhere written. 



157 



CHAPTER XI 

THE WILSON AND RANDOLPH DRAUGHTS 

SINCE Madison's time there have been un- 
covered four papers of which he knew 
nothing, and they bring ns into an almost new 
field of inquiry. These papers are in the 
handwriting of James Wilson, Edmund Ran- 
dolph and John Rutledge (all members of the 
Committee of Detail) and they are draughts 
(or sketches for draughts) of the Constitu- 
tion. 

The first paper, chronologically, is not a 
draught. It was discovered by Professor Mc- 
Laughlin and was published by him in the 
Nation of April 28, 1904, and is among the 
Wilson papers in the library of the Historical 
Society of Pennsylvania. It is in Wilson's 
hand and was found among his papers ; but if 
it was drawn up by him, of which I do not 
feel sure, it is questionable whether it was 
prepared by him for the Convention of 1787 ; 
and it is unquestionable that it was prepared 

158 



WILSON AND EANDOLPH DRAUGHTS 
before the adoption of the 23 resolutions. A 
single article, or item of the paper will dem^ 
onstrate this and its worthlessness. 

''20. Means of enforcing and compelling 
the Payment of the Qnota of each State/' 

This is all that there is concerning the rock 
upon which the Confederation was already 
wrecked — the dependence of the general gov- 
ernment upon the voluntary action of the State 
governments for revenue. Wilson in 1787 was 
too intelligent a statesman to even think of re- 
taining this condition of national dependency, 
and he was too wise a man to talk of ' ^ enforc- 
ing and compelling" the several States to con- 
tribute to the national treasury. He may 
have prepared the paper some time before the 
Convention was called, when amendments to 
the Articles of Confederation were all that 
was anticipated, but he did not draw up this 
memorandum after he had become a member 
of the Committee of Detail. 

The second paper in Wilson's hand was dis- 
covered by Professor Jameson among the 
Wilson papers, and was published by him in 

159 



THE PINCKNEY DRAUGHT 

the Animal Report of the Historical Associa- 
tion, 1902, Vol. I., p. 151. This paper contains 
the preamble of the Pinckney draught, and, 
consequently, of the draught of the Committee. 
Then follow the first three articles of the 
Committee's draught, with some slight varia- 
tions of language ; and then under the caption 
of what should be article 4, come 29 para- 
graphs containing provisions closely agree- 
ing with provisions in the Committee's but 
unarranged and incoherent in their order. 
The second sheet of this draught is unfor- 
tunately missing; the third sheet contains 
various provisions, following closely the 
17th, 18th, 19th, 20th and 21st resolutions, 
and, near the end of the paper, the provision 
relating to the veto power taken from the con- 
stitution of Massachusetts with the term 
^ ^ Governour of the United States ' ' twice used. 
The third paper of Wilson was likewise dis- 
covered by Professor Jameson. Wilson had 
prepared the second draught for himself, 
but this third or final draught manifestly was 
prepared for the consideration of the other 
members of the Committee. He wrote it on 
lars^e foolscap in what is called double col- 

160 



WILSON AND RANDOLPH DRAUGHTS 

umns, L e, half of each page was left blank for 
the comments and suggestions and amend- 
ments of the others. The writing is in the 
clear, neat, legible hand, characteristic of Wil- 
son, and before the work of revision began, 
there was hardly a clerical error in the paper. 
A remarkable contrast is stamped upon it con- 
sisting of 43 amendments in the scrawly, slov- 
enly, bold, illegible writing of Rutledge, who 
really seems to have found pleasure in cutting 
and slashing the careful work, the almost fem- 
inine neatness and niceness of Wilson's pages. 
This draught unlike the second, is divided into 
articles, but unlike the Committee's, is not 
subdivided into sections. 

The fourth of these recently discovered 
papers is in the handwriting of Edmund 
Randolph. Mr. William M. Meigs in his 
Growth of the Constitution has done an ex- 
cellent piece of historical work in reproducing 
the draught of Randolph in facsimile. In 
its interlineations, erasures, changes, omis- 
sions and marginal queries we see Randolph's 
doubts and perplexities and the incomplete- 
ness of his plan and the limitations of his 
mental view of a draught ; and we see this as 

161 



THE PINCKNEY DEAUGHT 

distinctly as if we stood beside him wMle lie 
wrote. A more disheveled paper was never 
reproduced in facsimile. Upon its margin 
are annotations and suggestions of omitted 
provisions which are in the hand of Eutledge. 
One thing, most meritorious, appears — that 
Eandolph carefully and conscientiously went 
through the 23 resolutions and neglected no 
instruction which they gave. But the chief 
question remains unexplained as Sparks left 
it. How came the Committee of Detail to 
wander so far from the resolutions '^with the 
resolutions before them and Eandolph himself 
one of their number''? 

The draught of Eandolph begins in this 
way: 

*^In the draught of a fundamental consti- 
tution two things deserve attention: 

*^1. To insert essential principles only, lest 
the operations of government should be 
clogged by rendering those provisions perma- 
nent and unalterable which ought to be accom- 
modated to times and events, and 

* ^ 2. To use simple and precise language and 
general propositions according to the example 

162 



WILSON AND RANDOLPH DRAUGHTS 

of the constitutions of the several States." 
Randolph then considers the subject of a 
preamble and sets forth a brief disquisition to 
show that a preamble is proper and what it 
should contain. ^^We are not working,'' he 
says, '^on the natural rights of men not yet 
gathered into society, but upon the rights 
modified by society and interwoven with what 
we call the rights of States." He outlines 
what the preamble should set forth ; his views 
are sound, but his intended preamble is not the 
preamble reported by the Committee of De- 
tail. 

There is a curious provision in his draught 
relating to the compensation of Senators: 
*^The wages of Senators shall be paid out of 
the treasury of the United States ; those wages 

for the first six years shall be dollars per 

diem. At the beginning of every sixth year 
after the first the supreme judiciary shall 
cause a special jury of the most respectable 
merchants and farmers to be summoned to de- 
clare what shall have been the averaged value 
of wheat during the last six years, in the State 
where the legislature 3hall be sitting; and for 

163 



THE PINCKNEY DEAUGHT 

the six subsequent years, the Senators shall 

receive per diem the averaged value of 

bushels of wheat. ' ' 

This extraordinary provision for the benefit 
of Senators only illustrates the crudity of 
Eandolph's intentions at the time and the in- 
completeness of his plan. 

The annotations of Eutledge are few but 
they are valuable for they authenticate the 
paper ; they prove it was the very paper upon 
which Eandolph and Eutledge worked; and 
that it was all which they had then prepared 
toward a draught of the Constitution. 

These draughts of Eandolph and Wilson 
disclose another fact of unusual interest. 
When the Eandolph draught was found bear- 
ing the annotations of Eutledge, it suggested 
the idea that the two Southern members of 
the Committee of Detail had put their heads 
together to draught a constitution which 
would be accepted at the South, and that prob- 
ably the three Northern members had pre- 
pared another which would be accepted at the 
North. But the final draught of Wilson dis- 
pels that illusion. We now know that Eut- 
ledge gave quite as much attention to the Wil- 

164 



WILSON AND EANDOLPH DRAUGHTS 

son draught as to the Randolph draught, and 
that he wrote many more amendments upon 
its margin. Nothing has been discovered to 
show that Ellsworth and Gorham even at- 
tempted to draught a constitution; and after 
finding that the other members used and util- 
ized and amended the Pinckney draught we 
know that there was nothing left for Ellsworth 
and Gorham to draught. They were not con- 
structive men in the Convention, though being 
critically minded they may have rendered 
good service in the way of revision, but they 
contributed nothing to the draught of the 
Committee. Every provision in it is traceable 
to Pinckney, Wilson, Randolph and Rutledge, 
and they were its authors. 

The second and third draughts of Wilson 
appear in neatness and completeness to be 
copies. There is nothing indicative in them 
of an author's perturbations. The writing is 
small and finished. If it were not known to 
be Wilson's hand one could easily believe it to 
be that of a secretary, giving good work for 
wages, undisturbed by the cross currents of 
thought and composition. But on the back of 
a sheet of the second draught is a paragraph 

165 



THE PINCKNEY DRAUGHT 

which is unmistakably a rough draught, which 
is unquestionably author's work, warped and 
altered in the uncertainties of construction 
and composition; and this piece of work is a 
preamble. 

As first written, before erasures and inter- 
lineations Degan, it stood as follows: 

*'We the people of the States of New Hamp- 
shire etc. do agree upon ordain and establish 
the following Frame of Government as the 
Constitution of the United States of Amer- 
ica according to which we and our Posterity 
shall be governed under the Name and Stile 
of the United States of America." 

"Wilson then amplified the first part of this 
draught, and the amplifications well illustrate 
the bent of his mind toward details and par- 
ticulars ; and he next reduced it by omitting the 
clauses which relate to the government of our- 
selves and our posterity, and to the '^Name 
and Stile ' ' of the future nation so that it reads 
as follows: 

''We the People of the States of New Hamp- 
shire etc. already confederated under and 

166 



WILSON AND RANDOLPH DRAUGHTS 
known by the Stile of the United States of 
America do ordain declare and establish the 
following Frame of Government as the Con- 
stitution of the said United States." 

Neither of these versions is the preamble re- 
ported by the Committee. Each lacks the 
bold simplicity and comprehensiveness and di- 
rectness of Pinckney's: ^^We the People of 
New Hampshire'' etc. ^'do ordain declare and 
establish the following Constitution for the 
government of ourselves and posterity." 

The preamble is in words and structure a 
small thing. Two persons having the tasks 
set them of preparing a preamble with that 
of Massachusetts before them as material out 
of which each should be made, could hardly 
avoid, one would think, evolving out of it two 
sentences which would be in terms almost 
identical. But even in this small thing the 
different traits and methods and style of the 
two men appear. Pinckney takes the Massa- 
chusetts preamble and reduces it until he gets 
what he wants without a superfluous word. 
Wilson cannot resist amplifying even while he 
is condensing. When we get through with 

167 



THE PINCKNEY OEAUGHT 

what is unqiiestionably Wilson's work, the 
preamble for the Committee remained to be 
written — unless it was already written in the 
Pinckney draught. 

In the investigation of the charges of Madi- 
son against Pinckney it was found that when- 
ever the evidence was subjected to a rigorous 
examination the case broke down. These 
draughts of Wilson and Eandolph though not 
intended as a charge against Pinckney may be 
treated as such — the charge of appropriating 
Wilson's work and representing it to be his 
own. Accordingly I have in like manner, ex- 
amined the evidence and have again found 
that it does not sustain the charge. A few il- 
lustrations will make this plain. 

The preamble in the Committee's draught is 
in Wilson's, word for word. When we find 
that this preamble is in the preliminary 
draught of Wilson (a member of the commit- 
tee), and in the finished product (the draught 
of the committee), we easily infer that Wilson 
was the author, the originator of the preamble, 
and when we find that the same preamble is in 
the draught of Pinckney and know that he 
possessed a copy of the Committee's draught 

168 



WILSON AND EANDOLPH DRAUGHTS 

we are in danger of taking another step on the 
pathway of assumption and reaching the con- 
clusion that Pinckney must have taken his 
preamble from the Committee's draught. 
This makes a case against Pinckney which is 
entitled to explanation or examination. 

The preamble to the Constitution of the 
United States was suggested by the Articles 
of Confederation and the constitutions of 
eleven of the thirteen States. Its language 
was taken by Pinckney or by Wilson, or by 
both, from the Constitution of Massachusetts 
by much condensing. Wilson's draught is 
identical in terms with Pinckney 's save for the 
insertion of a single word, *^our," in the last 
line; ^^for the government of ourselves and 
our posterity." 

This word ^^our" is here a word of limita- 
tion, a word which taken literally would con- 
fine the blessings and government of the Con- 
stitution to the men who made it and their pos- 
terity. But at the time when these early con- 
stitutions were framed the growth of the 
country it was foreseen would depend chiefly 
on immigration. The Constitution of Massa- 
chusetts does not use the word ''citizen," and 

169 



THE PINCKNEY DEAUGHT 

throws the door of the elective franchise open 
to *' every male person" ^^ resident in any par- 
ticular town'' and to ^^the inhabitants of each 
town." '*And to remove all donbts concern- 
ing the meaning of the word inhabitant' in 
this constitution, every person shall be con- 
sidered as an inhabitant, for the purpose of 
electing and being elected into any office or 
place within the State in that town, district or 
plantation where he dwelleth or has his home." 
The draughtsmen of the Massachusetts Con- 
stitution therefore with logical exactitude, left 
the word ''posterity" unrestricted, and broad 
enough to extend to the posterity of all men 
who thereafter might become inhabitants 
within the State. 

Two things must now be noted. The first 
is that every word in Pinckney's preamble, 
save one, was taken from the preamble of the 
constitution of Massachusetts; the second, 
that Pinckney's draught adheres to the un- 
restricted ''posterity" of the constitution, and 
does not follow the restricted "posterity" of 
the Wilson draught. The charge that Pinck- 
ney's preamble was "necessarily" derived 
from the Committee's draught is therefore 

170 



WILSON AND EANDOLPH DRAUGHTS 

doubly refuted. There was a source to which 
Pinckney could go for his preamble, the con- 
stitution of Massachusetts, and he went there ; 
there was a deviation from the constitution of 
Massachusetts in the Wilson draught, and 
Pinckney did not follow it. 

Wilson probably inserted the word '^our," 
in his preamble for a rhetorical reason ; for he 
was one of the signers of an instrument which 
rang with its own concluding words **our 

LIVES, OUR FORTUNES AND OUR SACRED HONOR. ' ' 

The insertion of one word (our) in one of 
these preambles is a slender strand of cir- 
cumstantial evidence. But circumstantial evi- 
dence is made up generally of slender strands ; 
and circumstantial evidence is least suspicious 
when the strands are severally insignificant. 
With the Declaration of Independence and the 
Articles of Confederation and eleven of the 
State constitutions containing preambles, it 
is inconceivable that Pinckney would have 
framed his draught without a preamble ; and 
if Pinckney framed the preamble, as he must 
have done, it is inconceivable that he would 
have thrown it aside in 1818 and substituted 
another man's, for he was never ashamed of 

171 



THE PINCKNEY DEAUGHT 

his own work. And it mnst be taken as a 
fixed fact that Pinckney had a preamble, for 
the structure of the draught required it; the 
first article would be meaningless without one, 
*^The stile of this government — the govern- 
ment announced in the preamble. Therefore 
having the necessity of a preamble, and the 
production of one in 1818, and the strict ad- 
herence in words and intent to the consti- 
tution of Massachusetts and Pinckney 's famil- 
iarity with that constitution, the severally 
slender strands become a cord of circumstan- 
tial evidence which must satisfy an unpre- 
judiced mind that Pinckney was the author of 
the preamble in his draught. There are too 
many clews here to be disregarded, and they 
all lead one way. The unquestionable sketches 
of a preamble in Wilson's and Eandolph's 
handwriting show only three attempts and 
three failures. 

Let us now consider a second illustrative 
case : 

As we have seen in a previous chapter 
(Chap. XI) the 3d of the 23 resolutions de- 
clared that the members of the House of Eep- 
resentatives ^ * ought ' ' to receive an adequate 

172 



WILSON AND RANDOLPH DRAUGHTS 
compensation for their services; and the 4th 
resolution, that the members of the Senate 
''ought'' ''to receive a compensation for the 
devotion of their time to the public service." 
The term "adequate'' implied and required 
the exercise of some discretionary power, 
which must necessarily be national. For if 
Senators and Representatives were to be paid 
by the States which sent them to Congress, the 
members of Congress could not well turn 
around and dictate to the States what they 
should be paid. This was understood at 
the time. For on the 22d and 26th of June 
when the Convention refused to retain the 
words "to be paid out of the National Treas- 
ury" in the 3d resolution, "Massachusetts 
concurred" as Madison says, "not because 
they thought the State Treasury ought to be 
substituted; but because they thought nothing 
should be said on the subject, in which case 
it wd. silently devolve on the Nat. Treasury 
to support the National Legislature." 

Furthermore this thing was not done in a 
corner and the consideration of it was not 
confined to an hour. On the 12th of June the 
Committee of the Whole had resolved that the 

173 



THE PINCKNEY DRAUGHT 

Representatives in Congress ^^ ought to be 
paid out of the National Treasury, ' ' and again 
on the same day that Senators ** ought'' **to 
be paid out of the National Treasury"; and 
on the 13th of June the committee had voted 
to report these resolutions to the Convention; 
and on the 22d of June the Convention had re- 
fused to change this to payment by the States. 
Moreover the proposition that members be 
paid by the States had been condemned by the 
strongest men in the Convention. ^* Those 
who pay are the masters of those who are 
paid, ' ' Hamilton had said ; and Gorham, Ran- 
dolph, King, Wilson, and Madison had said 
as much. 

Nevertheless the Committee of Detail re- 
ported a provision that the members should be 
paid by the States; and, not only this, but 
also, that the compensation should be ^^ascer- 
tained" ^'by the State in which they shall be 
chosen." , 

The only reason for or explanation of the 
Committee's act so far as we know is that 
working hurriedly, they overlooked one of the 
details of the 3d and 4th resolution, and, using 
Pinckney's draught as their copy, inadver- 

174 



WILSON AND RANDOLPH DRAUGHTS 

tently allowed this provision of Ms to stand 
unchanged. 

In these newly found papers of "Wilson this 
provision making the compensation of the 
national legislators dependent npon the action 
of the State legislators appears just as it 
stands in the draught of the Committee of De- 
tail. Did "Wilson originate this or did he get 
it from the Pinckney draught! 

There is good reason for believing that such 
a provision would be found in Pinckney 's 
draught. On the 22nd of June when the 
clause of the 3d resolution declaring that mem- 
bers ^^ ought'' to be paid out of the public 
treasury" had been advocated by some of the 
strongest men in the Convention, and the Con- 
vention apparently were about to adopt it, 
their immediate action was blocked by South 
Carolina; ^^The determination of the House 
on the whole proposition was, on motion of 
the Deputies of the State of South Carolina, 
postponed until to-morrow," says the Journal. 
A State had this right under the Rules of the 
Convention, and the Deputies of South Caro- 
lina exercised it, Pinckney being one of them. 
On the following day they succeeded in defeat- 

175 



THE PINCKNEY DRAUGHT 

ing the adoption of the clause. On the 26th of 
June General Pinckney ^^ proposed that no 
salary should be allowed'' to Senators. '^This 
branch" he said *^was meant to represent 
wealth ; it ought to be composed of persons of 
wealth." And '^on the question for payment 
of the Senate to be left to the States" South 
Carolina voted V^aye." 

But there is no good reason why we might 
expect to find this provision in Wilson's 
draught. The resolutions did not so direct; 
and there had not been a single vote of the 
Convention which committed this matter of 
compensation to the States; and "Wilson's per- 
sonal bias could not have misled him for he 
condemned it. On the 22nd of June he had said 
in the Convention that '^he thought it of great 
moment that the members of the National 
Government should be left as independent as 
possible of the State Governments in all re- 
spects," and during the same debate he had 
moved that the salaries of the 1st branch ^^be 
ascertained by the National Legislature." 
The explanation is that Wilson working with 
Pinckney 's draught before him gave his at- 

176 



WILSON AND EANDOLPH DEAUGHTS 
tention to improving its phraseology ; and that 
the other members of the Committee confiding 
in Wilson's scrupulous carefulness and par- 
ticularity overlooked his mistake. 

We have before us a third illustration : 

The Constitution of New York provided, 
^'The supreme legislative power within this 
State shall be vested in two separate and dis- 
tinct bodies of men; the one to be called the 
Assembly of the State of New York ; the other 
to be called the Senate of the State of New 
York ; who together shall form the legislature, 
and meet once at least in every year for the 
despatch of business." 

The draught of Pinckney varies slightly; 
*^The legislative power shall be vested in a 
Congress, to consist of two separate houses; 
one to be called the house of Delegates; and 
the other the Senate, who shall meet on the — 
day of — ' — in every year. ' ' 

The draught of Wilson also follows this 
with little variation: 

''The Legislative power of the United States 
shall be vested in two separate and distinct 
Bodies of Men, the one to be called the House 

177 



THE PINCKNEY DEAUGHT 

of Eepresentatives of the People of the United 
States, the other the Senate of the United 
States. '^ 

So far we have in these three instruments 
the same earmark: ^Hhe one to be called the 
Assembly of the State of New York ; the other 
to be called the Senate." '^One to be called the 
House of Delegates and the other the Senate.'' 
* ^ The one to be called the Honse of Eepresen- 
tatives, the other the Senate.'' But the 
draught of the Committee of Detail departs 
both in words and structure from this form: 
'^The Legislative Power shall be vested in a 
Congress to consist of two separate and dis- 
tinct bodies of men, a House of Eepresenta- 
tives and a Senate; each of which shall in all 
cases have a negative upon the other." 

Here it was possible that Wilson followed 
the Pinckney draught, which was in his pos- 
session, but it was not possible that Pinckney 
copied Wilson's draught which was then un- 
published and unknown. The words that 
Pinckney and Wilson both used, '4he one to 
be called the House, the other the Senate" 
are clews which lead from Pinckney directly 
to the Constitution of New York. The Com- 

178 



WILSON AND RANDOLPH DEAUGHTS 

mittee changed the words and changed the 
structure of the sentence and thereby rendered 
it certain that Pinckney did not derive his 
provision from their draught. 

Let us take another illustrative case: 
Luther Martin's resolution of July 17th 
provided, ^^The legislative acts of the United 
States" ''and all treaties'' ''shall be the su- 
preme law of the respective States." (The 
7th of the 23 resolutions.) Article VIII. of 
the draught of the Committee of Detail varied 
the phraseology in one word "shall be the 
supreme law of the several States." The com- 
mittee of Style gave us the provision as it 
stands in the Constitution: (Art. VL) "This 
Constitution and the Laws of the United 
States which shall be made in pursuance 
thereof; and all treaties which shall be made 
under the Authority of the United States shall 
be the supreme law of the land," 

Turning back from the Constitution to 
Pinckney 's draught, avowedly drawn up be- 
fore the work of the Convention had even be- 
gun, we find in his Artivle VI. "All acts made 
by the legislature of the United States pur- 
suant to this Constitution, and all treaties 

179 



THE PINCKNEY DRAUGHT 

made under the authority of the United States 
shall be the supreme law of the land. ' ' 

This assuredly seems to be an instance 
which confirms Madison; that is to say an in- 
stance where as Madison said there are to be 
found in the draught in the State Department, 
'Hhe results of critical discussion and modifi- 
cation in the Convention/' Must we also add, 
with Madison ^^ which could not have been an- 
ticipated"? Moreover if Pinckney obtained 
this provision by purloining it, he must have 
taken it from the Constitution itself. The 
language in his draught apparently involves 
and combines three distinct acts of the Con- 
vention; the adoption of the resolution of 
Martin on the 17th of July ; the acceptance of 
the Committee 's draught of the 6th of August ; 
the revision by the Committee of Style, just 
before the dissolution of the Convention. 
This makes a dark charge against Pinckney — 
far darker and more specific than any charge 
that Madison preferred against him. At first 
sight it seems as if at last Pinckney was taken 
in the toils of his own weaving, as if there 
were no escape for him and that he must be 
convicted. But the simple explanation is that 

180 



WILSON AND EANDOLPH DRAUGHTS 

Pinckney took his provision and its verbiage 
from the Congress of the Confederated States 
in the resolution of March 21st 1787. Luther 
Martin did not adhere to the language of the 
resolution; and he did not intend to; for his 
resolution was a compromise, an alternate for 
a proposed power in Congress to negative the 
laws of the States, and he intended that his 
resolution should bear directly and explicitly 
upon '^the respective States." The subject 
was one of great importance, of surpassing 
interest and had but recently been disposed of 
by compromise in the Convention, and the 
Committee properly adhered to Martin's reso- 
lution, correcting only one word by the sub- 
stitution of another, ^^severaP' for ^^respec- 
tive, " * ^ shall be the supreme law of the several 
States.'' 

Pinckney had been a member of the Con- 
gress when the resolution of March 21st was 
passed ; he may have draughted it himself ; 
and certainly it covered a matter in which 
he was interested above all other things, the 
supremacy of the National Government. The 
Committee of Style may have taken the con- 
cluding phrase from the resolution of Con- 

181 



THE PINCKNEY DEAUGHT 

gress or theymay have placed it in the Consti- 
tution on their own motion; for Trevett v. 
Weeden had been heard and adjudicated by 
the Supreme Court of Ehode Island on Sep- 
tember 25th, 26th, 1786, and the words ''the 
LAW OF THE land" wcto in the air; and the 
term had received a judicial significance 
which has never been adequately appreciated 
It meant an authority higher than a statute. 

There are three important articles in Wil- 
son's draught which are not Wilson's. These 
appear on the margin in the handwriting of 
Rutledge and answer to article XIV, XV and 
XVI of the Committee's draught. As they 
are in almost the precise language of Pinck- 
ney's articles 12 and 13 the much repeated 
question again arises, did Rutledge take them 
from the Pinckney draught ; were they then in 
the Pinckney draught to be taken; or did 
Pinckney abstract them from the Committee's 
draught! The question is easily and deci- 
sively answered: these articles are described 
in the Observations; Pinckney' s title to them 
cannot be questioned; Wilson and Rutledge 
%ad his draught before them, and iised it, when 
Rutledge ivrote these articles upon the margin, 

182 



WILSON AND EANDOLPH DEAUGHTS 

The veto power was cast by the Convention 
in their resolutions with those of the Execu- 
tive. Pinckney had placed it in his draught 
among the legislative, though he is careful to 
say in the Observations that the Executive 
''is not a branch of the Legislature farther 
than as a part of the council of revision/' 
Nevertheless he placed the veto at the end of 
his article 5 — an article relating to the choos- 
ing of members of the lower house; to the 
privileges of Representatives and Senators; 
to the business proceedings of both houses. 
Wilson more clearly perceived that the Ameri- 
can veto would lack the finality of the Le roy, 
avisera of the Crown, and that it would be 
neither a legislative nor an executive power 
though having the properties of both; and he 
properly made of the veto power an entire and 
independent article, article 7 of his draught. 
There were members of the Convention who 
regarded the veto power as a bulwark against 
the encroachments of the legislative power; 
and Wilson himself had said that, ''the Exe- 
cutive ought to have an absolute negative"; 
that "without such a self-defence the Legis- 
lature can at any moment sink it into non- 
183 



THE PINCKNEY DE AUGHT 

existence. ' ' Unquestionably the veto provision 
ought to have been placed in the Committee's 
draught as Wilson placed it in his own. But 
it was not. On the contrary it appears there 
as it appears in Pinckney's, as an incongruous 
paragraph at the end of an article which deals 
with the Plouse of Representatives, with the 
business of both Houses and with the privi- 
leges of the members of each. The one thing . 
certain here is absolutely certain — that the 
Committee in this did not follow Wilson's 
draught though it was correct and did follow 
some other draught though it was incorrect. 

It is comprehensible that if the provision 
of the veto power had started wrong as it did 
in Pinckney's draught, it might have con- 
tinued wrong, and its misplacement might 
have remained unnoticed; but it is incompre- 
hensible how the error could have been known 
to at least the two leading members of the 
Committee and have been actually and plainly 
corrected by one of them and the provision 
then have relapsed into the condition in which 
Pinckney left it, unless the Committee found 
about the end say of the seventh day that they 
must forego either the completion of Wilson's 

184 



WILSON AND EANDOLPH DEAUGHTS 

carefully prepared work or their bringing 
into the convention printed copies for the use 
of members, and that they then determined 
to use Pinckney's draught as copy for the 
printer, letting Wilson work into it, so far as 
he could, the corrections that he had embodied 
in his own and the changes which the Commit- 
tee had agreed upon. The incompleteness 
with which this was done shows very plainly 
that toward the end of the ten days the Com- 
mittee worked in haste. There are too many 
errors in the draught which would be both in- 
excusable and inexplicable if the Committee 
had had ordinary time to do their extraordi- 
nary work. 

There is a curious omission in Wilson *s 
draught which indirectly brings to the light 
the composite authorship of one section of the 
Constitution. 

In 1777 the punishment of treason had been 
a delicate subject in the United States more 
likely to be avoided than discussed. In 1787 
the members of the Convention had not for- 
gotten that within a dozen years they had had 
a personal interest in that subject. Pinckney 
in article 6 had given Congress twenty-two 

185 



THE PINCKNEY DRAUGHT 

specific unrestricted powers but when he came 
to the power to declare the punishment of 
treason he paused and defined what treason 
should consist in and provided that no per- 
son should be convicted of the restricted 
crime but by the testimony of two witnesses. 
He threw all this into a distinct paragraph 
which ultimately, with additional restrictions, 
became section 2 of article VII of the Com- 
mittee's draught. But neither the paragraph 
of Pinckney nor the section of the Committee 
is in the draught of Wilson. 

Wilson did not overlook the subject, ^^The 
Legislature of the United States shall have the 
power," his draught says, ^^to declare what 
shall be treason against the United States," 
and, having attached no restriction to the 
power, he properly placed it among the speci- 
fied powers immediately after the one ^'To 
declare the law and punishment of piracies 
and felonies committed on the high seas and 
the punishment of counterfeiting the coin of 
the United States, and of offences against the 
law of nations." 

But Rutledge did not consent to this. He 
and Pinckney seem . to have vaguely feared 

186 



WILSON AND EANDOLPH DRAUGHTS 

that the law of treason might yet he admin- 
istered in the United States by George III 
and he scrawled with his ruthless hand on the 
margin of "Wilson's carefully written page, 
''Not to work corruption of Blood or Forfeit 
except during the life of the party"; and Wil- 
son thereupon erased his own provision and 
struck it out from among the specific, unre- 
stricted powers. 

Here the significant fact to be noted is that 
the words written on the margin of Wilson's 
draught were not taken from Pinckney's. 
That is to say the restrictions proposed by 
Eutledge were additional to those set forth by 
Pinckney. What Pinckney wrote and what 
Eutledge wrote and nothing more make the 
second section of the Committee's draught 
compounded and rearranged. The material 
was supplied by Pinckney and Eutledge ; the 
reconstruction, judging by the careful and log- 
ical way the work was done was by Wilson: 
1 the definition of the crime ; 2 the power to 
punish the crime defined; 3 the restriction 
upon judicial proceedings, on the testimony 
of two witnesses ; 4 the restriction upon the re- 
sult of conviction, that it should not work cor- 

187 



THE PINCKNEY DEAUGHT 

ruption of blood, or forfeiture except dur- 
ing tlie life of the person attainted. It is also to 
be noted that no draught of this section 2 has 
been found. For reasons subsequently to be 
stated (chap. XII) it must be inferred that it 
was framed on the margin of the Pinckney 
draught. 

In article 8 of Wilson's draught immedi- 
ately following his treason clause is this pro- 
vision : 

^'To regulate the discipline of the militia of 
the several States." 

In article 6 of Pinckney 's draught the same 
power is given: 

^^To pass laws for arming organizing and 
disciplining the militia of the United States." 

This grant of power to arm organize and 
discipline meant that control of State troops 
should be taken from the States and lodged in 
the general government. It was a radical de- 
parture from what had been; a change not 
countenanced by the Articles of Confedera- 
tion and not authorized by the 23 resolutions. 
During the debates no member of the Conven- 
tion had so much as suggested it ; and on the 
26th of July when the Convention adjourned 

188 



WILSON AND EANDOLPH DRAUGHTS 

to enable the Committee of Detail to draught 
a constitution, Pinckney alone had ventured to 
formulate a provision which might alarm the 
States and arouse the anger and opposition 
of the militia. He had done so; that we 
know; it is incontrovertible, for it is specific- 
ally described in the Observations ^^the ex- 
clusive right of establishing regulations for 
the government of the militia of the United 
States ought certainly to be vested in the Fed- 
eral Government." 

Yet the Committee of Detail did not think 
so and they did not report such a provision. 
Here again it is possible that Wilson took his 
provision from Pinckney 's draught, but it is 
not possible that Pinckney took his from 
Wilson's. 

The draught of Randolph discloses three 
important pieces of information which tend 
positively to sustain the Pinckney draught. 
The first is (in the words of Mr. Meigs) ''that 
it was drawn up after the Convention had 
agreed upon the resolutions that were re- 
ferred to the Committee of Detail on July 
26th ; and in numerous instances its language 
is modeled upon them with even verbal ac- 

189 



THE PINCKNEY DEAUGHT 

curacy." (Growth of the Constitution, p. 
318.) Manifestly this draught was not writ- 
ten- — ^was not even begun, until after Ean- 
dolph had become a member of the Committee. 
The writing of it, the revising of it, its numer- 
ous alterations and corrections, the submis- 
sion of it to Rutledge, his examination of it 
and his changes and additions must have taken 
time. Almost every sentence in it is checked 
as if it had been compared with some other 
paper. In a word it indicates that some days 
must have passed after the 26th of July before 
Eandolph and Eutledge could have written it, 
and revised it, and left it in its present form; 
and it witnesses the important fact that only 
five or six days before the finished draught of 
the Committee of Detail was put in the hands 
of the printer at least two members of the 
committee were no nearer completion of the 
work than this disheveled draught. 

The great improbability against the Pinck- 
ney draught is that one man alone and unas- 
sisted should have prepared so much of the 
Constitution. But it is a hundred times more 
improbable that this Committee unassisted by 
Pinckney's draught should have prepared and 

190 



WILSON AND RANDOLPH DRAUGHTS 

completed their own with all its well se- 
lected details, with language carefully taken 
from many sources, and with provisions far in 
excess of their instructions, than that Pinck- 
ney should have completed his in his own 
time (making as he did, four or five versions 
of it), thoroughly versed, as he was, in the 
needs and weaknesses of the existing general 
government and the constitutions of the sev- 
eral States, and able to confer, as he did, with 
the ablest statesmen in the country. 

The second thing which the Randolph 
draught does for us is important and most in- 
teresting. It enables us to ascertain the fact 
that the section of the Committee's draught 
which declares the jurisdiction of the Supreme 
Court (Art. XI, sec. 3), was the work of three 
persons ; and the very words which each con- 
tributed. 

The 16th resolution of the Convention was 

as follows : 

^^16. Resolved, That the jurisdiction of the 
national judiciary shall extend to cases aris- 
ing under laws passed by the general legis- 
lature, and to such other questions as involve 
the national peace and harmony." 

191 



THE PINCKNEY DRAUGHT 

Eandolph followed the resolution but en- 
larged the jurisdiction; and Rutledge added 
two provisions in marginal notes; and their 
proposed section was as follows : 

^^The jurisdiction of the supreme tribunal 
shall extent, 1, to all cases arising under laws 
passed by the general Legislature; 2, to im- 
peachments of officers; and 3, to such cases as 
the national legislature shall assign, as in- 
volving the national peace and harmony; in 
the collection of the revenue; in disputes be- 
tween citizens of different States (here Rut- 
ledge has added on the margin 4n disputes 
between a State and a citizen or citizens of 
other States^); in disputes between different 
States ; and disputes in which subjects or citi- 
zens of other countries are concerned (here 
Rutledge has added 4n cases of admiralty 
jurisdiction'). But this supreme jurisdiction, 
shall be appellate only; except in cases of im- 
peachment and in those instances, in which 
the Legislature shall make it original ; and the 
Legislature shall organize it. The whole or a 
part of the jurisdiction aforesaid, according 
to the discretion of the legislature, may be as- 

192 



WILSON AND RANDOLPH DRAUGHTS 

signed to the inferior tribunals as original 
tribunals.'^ Meigs, p. 244. 

When we pass to the draught of the Com- 
mittee of Detail we find that the latter part of 
this section of Randolph's was adopted, but 
that the first part was rejected. This rejec- 
tion however was not a curtailment of juris- 
diction, but a substitution of other language 
in the stead of Randolph's. The question 
therefore which is now presented to us is this, 
Who contributed the substitute? Who was the 
author of the first part of the 3d section? 

The corresponding declaration of jurisdic- 
tion in the Pinckney draught in article 10 con- 
tains only four subjects of jurisdiction. Each 
of these was suggested by other provisions of 
the draught. Article 8 for instance, provides 
that the President may be removed ''on im- 
peachment by the House of Delegates and con- 
viction in the Supreme Court." Article 10 
accordingly provides that the jurisdiction of 
the Supreme Court shall extend to ''the trial 
of impeachment of officers.'' The style is 
characteristic of Pinckney; clear and terse 
and yet carelessly expressed. "One of these 

193 



THE PINCKNEY DEAUGHT 

courts," he says, '^ shall be termed the Supreme 
Court, whose jurisdiction shall extend to all 
cases arising under the laws of the United 
States, or affecting ambassadors, other public 
ministers and consuls; to the trial and im- 
peachment of officers of the United States ; to 
all cases of admiralty and maritime jurisdic- 
tion." 

If we now turn to the draught of the Com- 
mittee we shall find that these lines are the 
first lines of section 3, and that the two 
draughts are here identical. They contain the 
same provisions, arranged in the same se- 
quence, expressed in the same terms. These 
lines therefore form the substitute which ap- 
pears to have displaced the first part of Ean- 
dolph's section. The two things fit together 
with precision. 

The significant fact to be noted here is that 
the Pinckney draught contains the provisions 
and words which form the apparent substi- 
tute in the Committee's draught, but contains 
nothing more. In a word not one of the pro- 
visions which we now know were prepared 
by Eandolph and Eutledge are in the Pinckney 
draught. 

194 



WILSON AND RANDOLPH DRAUGHTS 

Four then of the grants of jurisdiction in 
article XI section 3 of the Committee's draught 
apparently were taken from the Pinckney 
draught and the remaining four unquestion- 
ably were taken from the Randolph draught. 
The section therefore is composite. 

Wilson's draught here comes into the case 
enabling us to understand how this combina- 
tion was brought about. 

Wilson was in effect rewriting the Pinckney 
draught. Finding the first four subjects of 
jurisdiction precisely what he wanted, he re- 
tained them as they were without change or 
amendment. But they were insufficient. 
Randolph, Wilson and Rutledge were lawyers 
in practice who could foresee controversies in 
the future dual system which Pinckney had 
not foreseen. Accordingly Wilson took four 
additional subjects of jurisdiction from Ran- 
dolph's draught having Rutledge 's amend- 
ments and with some revising thus brought 
eight subjects of jurisdiction into his draught 
which subsequently appeared in the Commit- 
tee's. 

To say that Pinckney was fraudulently 
plagiarising from the Committee's draught 31 

195 



THE PINCKNEY DEAUGHT 

years afterward and that while so doing he 
chanced to take one-half of the Committee's 
subjects of jurisdiction bnt not the other half, 
and that the half which he chanced to take 
might very well be his own, and that the half 
which he did not take chanced, as we now 
know, to be Eandolph's is to state an absurd- 
ity. There are too many things here to be 
ascribed to chance; and each and all of them 
must have chanced to take place to make out a 
case of plagiarism against Pinckney. 

The third piece of information which Ean- 
dolph's draught gives us is in the nature of 
positive evidence and establishes directly the 
fact that the Committee recognized Pinckney 's 
draught and used it. 

Under the heading, ^^The following are the 
legislative [poivers] with certain exceptions 
and under certain restrictions/^ Eandolph set 
forth the powers of Congress, for the most 
part taken from the Articles of Confederation, 
^^To raise money by taxation"; **To make 
war," etc., etc. After investing the general 
government with these powers he turned, not 
illogically, to restrictions which would prevent 
the States from usurping or denying the pow- 

196 



WILSON AND RANDOLPH DEAUGHTS 

ers so granted and placed in his draught the 
following provision: 

*'A11 laws of a particular State repugnant 
hereto shall be void; and in the decision 
thereon, which shall be vested in the supreme 
judiciary, all incidents without which the gen- 
eral principle cannot be satisfied shall be con- 
sidered as involved in the general principle. ' ' 

This section he subsequently cancelled and 
over it he wrote, ^'Insert the 11 article.'^ 

Where then is this article 11 which would 
restrict the powers of the States and render 
their laws, if repugnant to the Constitution, 
void? 

It cannot be article XI of the Articles of 
Confederation ; for it provides only for the ad- 
mission of Canada as one of the States of this 
Union. It cannot be article XI of the 
draught of the Committee of Detail for it re- 
lates only to ^^The judicial power of the 
United States "> to the judges, to jurisdic- 
tion; to the trial of criminal offences; and 
there is not a line which limits the power of a 
State or declares a statute void. Moreover 
the restrictions upon the States in the Com- 
mittee's draught are divided and pkced in two 

197 



THE PINCKNEY DRAUGHT 

articles which are numbered XII, XIII. It 
cannot be Article XI of Wilson's draught for 
it relates to the powers of the Senate, the 
power to make treaties, to appoint ambassa- 
dors and judges, to adjudicate controversies 
between two or more States, and controver- 
sies concerning lands claimed under conflict- 
ing grants from different States, it being ar- 
ticle IX of the Committee's draught. There 
is, however, an article 11 which places re- 
strictions upon the States, and meets the re- 
quirements of Randolph as exactly as if it had 
been framed to effect his purpose, and it is 
article 11 of the Pinckney draught. We know 
too that it is Pinckney 's own, for it is de- 
scribed in the Observations. 

With the 11th article in Wilson's draught 
and the 11th article in the Committee 's failing 
to respond to the requirements of the refer- 
ence, and with Pinckney 's article 11 respond- 
ing fully and exactly to it, there is but one con- 
clusion left which is that Randolph when he 
wrote ^^ Insert the 11 article" intended article 
11 of the Pinckney draught. 

When the fact is established that the Com- 
mittee of Detail had before them the Pinckney 

198 



WILSON AND RANDOLPH DEAUGHTS 

draught and took from it a single excerpt, 
though of not more than f onr lines, the burden 
cannot rest on Pinckney to account for 
identities and resemblances. The onus pro- 
bandi will then be npon the other side ; and the 
issue being whether the Committee used the 
Pinckney draught or Pinckney copied from 
the Committee's, the presumption must be, un- 
til the contrary be shown, that all identical 
provisions in the two draughts originated in 
Pinckney 's. 

If James Wilson were now living, and as- 
serting that he was the true and unassisted 
author of the Committee's draught these pa- 
pers would be strong, though not conclusive, 
evidence to maintain his claim; and if Pinck- 
ney had never prepared a draught of the Con- 
stitution and his draught had never been pre- 
sented to the Convention, and had never been 
referred to the Committee of Detail for the ex- 
press purpose of assisting them in drawing up 
a draught of the Constitution, these papers 
would justify historical scholars in saying that 
Wilson should occupy the place which Pinck- 
ney occupies, and that the alien member of the 
Convention was the chief individual contrib- 

199 



THE PINCKNEY DRAUGHT 

utor to the Constitution of the United States. 
But the defect of these papers is that we know 
nothing about them, save that they are in the 
handwriting of Wilson and Eutledge. That 
they are original matter; that they are not 
made up of excerpts from Pinckney's draught: 
are propositions which are now sustained only 
by conjectures. 

Against such conjectures, there stand the 
consistent silences of all the members of the 
Committee. Gorham lived nine years and said 
nothing of his colleague's great work. Wilson 
lived eleven years and saw the government 
which, conspicuously, he had helped to form 
firmly established, and became a judge of the 
Supreme Court, yet while he lived gave no in- 
timation of having drawn up the most impor- 
tant document of the Convention, and when he 
died left no statement showing the manner in 
which the work of the Committee of Detail 
was done. When Wilson passed away it be- 
hooved Ellsworth and Rutledge and Randolph 
to testify to posterity, if not to the men of 
their own time, of the great part which Wilson 
had secretly played in the drama of the Con- 
stitution, if he was the author of the draught. 

200 



"WILSON AND EANDOLPH DEAUGHTS 

But Rutledge lived two years, and Ellsworth 
nine years, and Eandolph fifteen years, and 
gave no sign. 

Against such conjectures too there is the 
record of the other draught, a series of incon- 
testible facts, each consistent with those that 
had gone before it and with those which were 
to come after it. Pinckney prepared a 
draught; it was presented to the Convention; 
it was referred to the Committee of the Whole, 
and thereby made accessible to every member 
of the Convention ; it was referred to the Com- 
mittee of Detail and thereby placed at the dis- 
posal of the committee and brought directly 
to the notice and knowledge of every member ; 
the Committee never returned it to the Con- 
vention and it has not been found among the 
papers of any one of them; Pinckney pub- 
lished a description of it within a month after 
the adjournment of the Convention; and a 
month later republished the description in a 
newspaper. In 1818 he authorized the publi- 
cation of a paper which he certified to be a 
substantial copy of the draught; it was im- 
mediately published with the first publication 
of the secret journal of the Convention and 

201 



THE PINCKNEY DRAUGHT 

widely disseminated as a public document ; at 
the time of publication 16 members of tbe Con- 
vention were living who must have desired, we 
must assume, to see the journal of the pro- 
ceedings in wbicb they bad personally taken 
part; and when tbey received tbe journal re- 
ceived with it a copy of Pinckney's draught; 
and yet when Pinckney died more than six 
years afterwards no surviving member of the 
Convention had denied or questioned the ver- 
ity of the published draught. 

There are very few historical papers in the 
world which have such a record of publicity 
behind them as Pinckney 's draught; and it is 
idle to attack such a record with one man's 
suspicions and another man's inferences, and 
our own prejudices and conjectures. Two in- 
controvertible facts are that at the time when 
these papers were written, Pinckney 's draught 
was in possession of these same men, Wilson, 
Randolph and Rutledge, and that they never 
returned it to the Convention. This exami- 
nation brings us round a circle to the question 
at which we started. Did the Committee rightly 
use the draught of Pinckney, or did Pinckney 
fraudulently copy the Committee's draught! 

202 



WILSON AND RANDOLPH DRAUGHTS 

The Randolph and Wilson draughts bring 
the case into this situation : 

1. Randolph, Wilson and Rutledge were the 
working members of the Committee and 
worked together. All that was done with the 
pen, so far as we know, was done by them. 
Wilson was the ready writer of the Committee 
and had before him, when he wrote his final 
draught, his own preliminary draught and 
Randolph's draught and Pinckney's draught. 

2. The final draught of Wilson was not be- 
gun until after his own preliminary draught 
was finished. The 43 amendments of Rut- 
ledge came later and were all subsequently 
considered and accepted by the Committee. 

3. From an intellectual point of view the 
final draught of Wilson with the annotations 
of Rutledge came near to being the draught of 
the Committee of Detail; but it was not the 
completed draught of the Committee even from 
an intellectual point of view; for additional 
provisions were framed and the arrangement 
of provisions was changed and the articles 
were subdivided into sections. From a print- 
er's point of view the material for a written 

203 



THE PINCKNEY DEAUGHT 

draught wMdi was to be put into type did not 
yet exist. 

4. If a copy of the draught was prepared 
for the printer (with Eutledge's 43 amend- 
ments and the additional provisions and the 
rearrangement of articles and the subdivision 
of articles into sections all engrossed therein), 
it is plain that Wilson, the hard worker of the 
Committee, was the man who did it. Wilson 
saved everything that he wrote and, conse- 
quently, saved his best. His best is his third, 
his final draught, but it is not the draught of 
the Committee. If he had prepared a copy 
for the printer, it would have been his best — 
by far the best thing he did. It would have 
been returned to him by the printer with the 
proofs; and Wilson we may confidently con- 
clude (knowing how he saved even scraps of 
his writing) would have preserved it. 

5. The evidence relating to the draughts of 
Eandolph and Wilson therefore closes with 
the draught of the Committee of Detail still 
undrawn and with very little time left in 
which it could be prepared for the printer. 
When we couple together the two significant 
facts that the Committee's work {i. e their 

204 



WILSON AND EANDOLPH DEAUGHTS 

manual labor) ended before they had prepared 
a draught for the printer, and that Pinckney's 
draught which was in their possession and had 
been used by them, disappeared during the 
same eventful week, there can be but one in- 
ference—that the Committee used it. 



205 



CHAPTER XII 

THE COMMITTEE 's USB OF THE DEAUGHT 

T~TP to tMs point the subject of considera- 
1^ tion has been the charges preferred by 
Madison against the copy of the draught in the 
State Department. I now propose to press 
the investigation in a more positive way; to- 
wit, by ascertaining whether the Committee of 
Detail used a draught of which this is a copy 
or duplicate, and to what extent and in what 
manner. 

In copyright cases where the issue is of 
plagiarism, it sometimes happens that traces 
of the earlier work will be found in the later 
one, be the language ever so carefully para- 
phrased and the plagiarism ever so carefully 
hidden. Misspelled names, erroneous dates, 
genealogical mistakes which originated in the 
one and reappear in the other are fateful wit- 
nesses. If we find such traces in the work of 
the Committee of Detail we may follow them 
as detectives follow clues until they find the 

206 



COMMITTEE'S USE OF THE DRAUGHT 

criminal ; that is to say mitil we find to a cer- 
tainty that the Committee used the draught. 

The first of these traces of Pinckney's hand 
in the Committee's draught is a very curious 
one inasmuch as it discloses the fact that in 
one provision the Committee followed Pinck- 
ney's leading unconsciously, and that their ac- 
tion was unauthorized by the Convention, if 
not in violation of their positive instructions 
twice repeated. The subject, the pay of Sena- 
tors and Representatives, had been much dis- 
cussed; but neither in the Committee of the 
Whole nor in the Convention had it ever been 
voted that the compensation should be either 
''determined'' or ''paid" by the States. The 
proceedings of the Convention in regard to 
this have been examined at length in the pre- 
ceding chapter and the details need not be re- 
peated here. It is enough to recall the fact 
that the Convention resolved expressly that 
the pay of Representatives should be "ade- 
quate," and by implication that the pay of 
Senators should likewise be adequate ; and that 
the Committee of the Whole had previously re- 
solved that both should be paid out of "the 
public treasury." How the Committee of De- 

207 



THE PINCKNEY DRAUGHT 

tail could have so reversed the determina- 
tion of the Convention as to provide that the 
members of both Houses should receive a com- 
pensation not necessarily '^adequate'' and ''to 
be ascertained" as well as ''paid'' by the 
State "in which they shall be chosen'' is ex- 
plicable in only one way; to-wit: 

Pinckney's draught likewise declared, also 
in a single provision (art. 6 )that "the mem- 
bers shall be paid for their services by the 
States which they represent." There is a 
verbal difference between the Committee's 
draught and the copy of the Pinckney draught 
in the State Department, a bettering of the 
English, which was done by Wilson as we have 
already seen in his draught and it is certain 
that the Committee reported to the Conven- 
tion a provision substantially that of the 
Pinckney draught, a provision which the Con- 
vention had more than once rejected. If the 
Pinckney draught was used as copy for the 
printer, it is plain enough that the clause of 
six words "by the States which they repre- 
sent" may have misled the Committee. With 
the many propositions which they had to codify 
and the brief time within which the work must 

208 



COMMITTEE'S USE OF THE DE AUGHT 

be done; and the confused and somewhat con- 
tradictory action of the Committee of the 
Whole and the Convention in June, and the di- 
vided responsibility and scrutiny of fLve men, it 
is easily possible that the Committee were mis- 
led by the provision in the Pinckney draught ; 
but it is not possible that they could have been 
so misled if there had been no Pinckney 
draught and they had followed the 3d and 4th 
resolutions and borne in mind the action of 
the Convention and the words of its leading 
members. 

A second deviation from the instructions 
given by the Convention relates to the pay- 
ment of the Executive. The 12th resolution 
says that the Executive is ^'to receive a fixed 
compensation for the devotion of his time to 
the public service to be paid out of the public 
treasury. '* The Pinckney draught (art. 8) 
says that the President ^^ shall receive a com- 
pensation which shall not be increased or 
diminished during his continuation in office" 
and stops there. The draught of the Commit- 
tee (art. X sec. 2) says ^^He shall, at stated 
times receive for his services a compensation, 
which shall neither be increased nor dimin- 

209 



THE PINCKNEY DRAUGHT 

ished during his continuance in office/' and 
stops there. In a word we find here Pinck- 
ney's language with a word or two of amplifi- 
cation, and a little correction (the kind of devi- 
ation which one may expect to find in the revi- 
sion of a statute or legal document) and we 
find (as in Pinckney) the important word 
'^ fixed'' omitted, and the not ^'increased or 
diminished" clause of Pinckney inserted, and 
the provision stopping as Pinckney stops, 
without the concluding words of the resolu- 
tion ^^to be paid out of the public treasury." 
There is here too much resemblance to Pinck- 
ney and too little adherence to the 12th resolu- 
tion to leave a doubt as to where the Commit- 
tee's provision came from. 

A more notable instance relates to the ap- 
pointing and treaty-making power of the Sen- 
ate. The 14th resolution declares that the 
judges of the ''Supreme tribunal shall be ap- 
pointed by the second branch" i.e, the Senate. 
But the draught of the Committee says (art. 
IX), ''The Senate of the United States shall 
have power to make treaties, and appoint Am- 
bassadors and judges of the Supreme Court." 
How came the Committee to invest the Senate 

210 



COMMITTEE'S USE OF THE DRAUGHT 

with power to make treaties and appoint am- 
bassadors when no such authority was con- 
ferred by the resolutions and no such deter- 
mination had been reached in the Convention? 
Pinckney's draught answers the question, 
(art. 7) the Senate, it says, shall have the sole 
and exclusive power *Ho make treaties; and to 
appoint ambassadors and other ministers to 
foreign nations, and judges of the Supreme 
Court. ' ' Here the Committee placed the whole 
treaty-making power and the diplomatic inter- 
course with foreign nations entirely in the 
hands of the Senate and for no other reason 
than that Pinckney had already done so. Such 
an extension of their work beyond their author- 
ity could not have suggested itself. Evi- 
dently when adapting Pinckney 's work to their 
own purposes they neglected to strike out 
'^treaties" and ^^ambassadors." 

In Pinckney 's draught is set forth (art. 3) 
''The House of Delegates shall exclusively pos- 
sess the power of impeachment, and shall 
choose its own officers ; and vacancies shall be 
supplied by the executive authority of the 
State in the representation from which they 
shall happen." And in the Committee's 

211 



THE PINCKNEY DEAUGHT 

draught it is similarly set forth (art. IV, sec. 
6, 7) ''The House of Eepresentatives shall 
have the sole power of impeachment. It shall 
choose its speaker and other officers. Vacan- 
cies in the House of Representatives shall be 
supplied by writs of election from the execu- 
tive authority of the State in the representa- 
tion from which they shall happen" (sec. 7). 
These incongruous things Pinckney threw to- 
gether in a single sentence. The Committee 
placed two of them in one section and the third 
in another, and amplified and corrected as us- 
ual; but not one of these powers is enumer- 
ated in the twenty-three resolutions; and let 
it also be noted that the peculiar and awkward 
phraseology, ''the executive authority of the 
State in the representation from which they 
shall happen'* is in both. 

While the uses and misuses of the Pinckney 
draught conclusively establish the fact that the 
Committee of Detail did use it and frequently 
adhere to its text, a more comprehensive and 
just idea of the service which Pinckney ren- 
dered and the manner in which his draught 
was used in the formation of the Constitution 
will be obtained by placing ourselves in the 

212 



COMMITTEE'S USE OF THE DEAUGHT 

place of the Committee and using it as they 
must have used it. 

At the convening of the Committee the 
draught which had been referred by the Con- 
vention was before them. It was the only 
draught of the proposed constitution which 
had been prepared by anyone — ^the only instru- 
ment or document, so far as our knowledge 
goes, which could be used by them as a pattern 
or basis for their work. Unquestionably the 
Committee sooner or later would take up this 
one instrument of its kind and ascertain how 
far it would serve their purpose. 

The preamble is the first and chief sentence 
in the Constitution; for it declares the source 
and supremacy of its authority. ''We the 
people of the United States" ''do ordain, de- 
clare and establish this Constitution." The 
preamble goes behind State governments, ask- 
ing nothing from them, either of authority or 
consent, and invokes the power which estab- 
lished them, the people of the United States. 
This supreme power, if the Constitution should 
be adopted, would allow States and State gov- 
ernments to continue to exist, but to exist sub- 
ordinate to a new power, the Constitution of 

213 



THE PINCKNEY DEAUGHT 

the United States and as parts and not units. 
In the first letter wliich Madison (then in New 
York) wrote to Jefferson (then in Paris) after 
the adjonrnment of the Convention, he said: 

^^It was generally agreed that the object of 
the Union could not be secured by any system 
founded on the principle of a confederation of 
Sovereign States. A voluntary observance of 
the federal law by all the members could never 
be hoped for. A compulsive one could evi- 
dently never be reduced to practice, and if it 
could, involved equal calamities to the inno- 
cent and the guilty, the necessity of a military 
force, both obnoxious and dangerous, and, in 
general, a scene resembling much more a civil 
war than the administration of a regular gov- 
ernment. 

^^H-ence was embraced the alternative of a 
government which, instead of operating on the 
States, should operate without their interven- 
tion on the individuals composing them; and 
hence the change in the principle and propor- 
tion of representation. ' ' 

The chief idea of the preamble is not set 
forth in any resolution or act of the Conven- 

214 



COMMITTEE'S USE OF THE DRAUGHT 

tion; and no instruction so to declare the 
source of anthority was given to the Commit- 
tee of Detail. The preamble belongs exclu- 
sively to Pinckney, though its words as we 
have before seen, were taken from the pream- 
ble of the constitution of Massachusetts. 
Chap. XL 

The only amendment which the Committee 
of Detail made, was in the last line of Pinck- 
ney's, the insertion of a single word ^'our,'' — 
*^for the government of ourselves and our pos- 
terity." With the exception of this word the 
Committee took Pinckney's preamble as they 
found it, and so reported it to the Convention. 
During the subsequent sittings of the Conven- 
tion it remained unamended and unques- 
tioned and undiscussed until at last it received 
the final touch of the Committee of Style. 

In article 1 Pinckney followed in part the 
Articles of Confederation and in part the Con- 
stitution of New York: ''The stile of this 
Government shall be the United States of 
America, and the Government shall consist of 
supreme legislative. Executive and judicial 
powers. ' ' 

This the Committee broke into two articles 

215 



THE PINCKNEY DEAUGHT 

and in the first line changed ^^this" to ^Hhe" 
but made no other change. 

Article 2 relates to the legislative power and 
was taken by Pinckney almost verbatim from 
the constitution of New York. The Commit- 
tee changed ^^ House of Delegates" to ^^ House 
of Eepresentatives,'' and filled a blank with 
^* first Monday in December,'^ and in place of 
two ** houses'^ said two ^^ distinct bodies of 
men," and introduced a needless provision 
that each house * ^ shall in all cases have a nega- 
tive upon the other." 

Article 3 relates to members of the ^^ house 
of delegates " ; to the term of office, to the qual- 
ifications of the electors, to the qualifications 
of members, to their apportionment among the 
States, to their proportion with population, to 
'^ money bills," impeachment, the choosing of 
their own officers, and to vacancies. Here the 
Committee ^s method of breaking an ar- 
ticle into sections begins. But the seven 
sections of the Committee 's follow in the same 
order and almost in the same words, the 
sentences of Pinckney. The article, like 
Pinckney 's, begins with, ''The members of the 

216 



COMMITTEE'S USE OF THE DRAUGHT 

house"; and ends, like his, '4n the representa- 
tion from which they shall happen. ' ' 

Article 4 relates to the Senate, and here first 
appear the individual opinions of Pinckney 
which were shared by no one. His senators 
were to be chosen by the House of Delegates. 
^^From among the citizens and residents of 
New Hampshire" — ''from among those from 
Massachusetts" — etc., etc. That is the repre- 
sentation was neither by States nor by popu- 
lation but by an arbitrary assignment in the 
Constitution. Pinckney believed that the Sen- 
ate should represent the wealth of the coun- 
try, and he probably intended that this arbi- 
trary assignment should be representative of 
wealth. The senators from New Hampshire, 
Massachusetts, Rhode Island and Connecticut 
were to form one class ; those from New York, 
New Jersey, Pennsylvania and Delaware an- 
other; and the remaining States a third. It 
was to be determined by lot which should go 
out of office first, which second, which third. 
As their times of service expired the House of 
Delegates was to fill them for a fixed and uni- 
form term. This plan was suggested to 

217 



THE PINCKNEY DEAUGHT 

Pinckney by the constitution of New York. 
Its only merit was that it wonld make the Sen- 
ate a continuing body, as we now have it, one- 
third of the members going out at one time. 
Its errors seem incredible. It would have en- 
abled the delegates from, say, the eastern and 
middle States to choose senators who would 
grossly misrepresent the southern States; 
with every change in the political supremacy 
of the House one-third of the senators would 
change, and one-third of the country might be 
represented by new and inexperienced men; 
with the people of a section of one political 
faith, their senators, chosen for them by the 
House of Delegates, might be of the opposite 
political belief. It is plain that when the Com- 
mittee came to Pinckney 's Article 4 they 
found something which would be of no use to 
them. The Convention had already marked 
out their work — ^the senatorial system which 
we still have — each State represented by two 
senators, each senator having an individual 
vote, the senators chosen by the legislatures of 
the several States. Yet even this article re- 
lating to Pinckney 's senate, the Committee 
used, and used in a way which indicates that 

218 



COMMITTEE'S USE OF THE DRAUGHT 

they took the paper upon which it was written 
and made it serve their purpose in framing 
their hurried draught. Art. V. 

Pinckney's article begins: '^The senate shall 
be elected and chosen by the;'' and the Com- 
mittee's begins: ^^The senate of the United 
States shall be chosen by the." At this point 
the Committee struck out the equivalent of 
222 words from the Pinckney article and in- 
terlined about half the number, 120 words. 
(The large imperial unruled foolscap with 
lines well apart and the broad margin readily 
admitted of this being done.) But the in- 
stant that the necessarily new matter was 
interlined, the Committee resumed with Pinck- 
ney 's words. His ' ' Each senator shall be 

years of age" etc., etc., becomes their *' Every 
member of the senate shall be of the age of 
thirty years at least" etc., etc. Then follow 
Pinckney 's provisions concerning citizenship, 
concerning the prior period of a senator's citi- 
zenship, concerning residence, the article clos- 
ing as Pinckney 's closes, ^'The Senate shall 
choose its own President and other officers." 
Here we have the two most dissimilar articles 
in the two draughts beginning with the same 

219 



THE PINCKNEY DEAUGHT 

words, ending with the same words, contain- 
ing the same provisions, following the same 
order, and differing only where the instruc- 
tions of the Convention compelled the Com- 
mittee to strike out a large and important por- 
tion of the earlier draught and to insert a new 
and important substitute. If the Committee 
were rewriting the article, there would be no 
reason for this extraordinary closeness of ad- 
herence — for this moving pari passu — for 
this going always as far and never farther 
over the ground traversed. 

Article 5 of the Pinckney draught is notable 
for containing the veto power. The Conven- 
tion grouped it in the 23 resolutions with the 
powers of the Executive; Wilson made of it 
an entire, independent article, but Pinckney 
who had taken it, as we have before seen, from 
the constitution of New York, retained its re- 
visionary character and placed it at the end of 
an article relating to the legislature and legis- 
lative business. The Committee left it where 
Pinckney placed it (Article VI, sec. 13) as 
we have seen in the preceding chapter; and 
in this as we have also seen in the preceding 

220 



COMMITTEE'S USE OF THE DRAUGHT 

chapter the Committee followed Pinckney and 
did not follow Wilson. 

The 6th article contains another singular 
instance of an oversight of Pinckney 's which 
the Committee followed. In it he gathers to- 
gether with care and patience from the 
Articles of Confederation and from State Con- 
stitutions the incidental powers of Congress. 
The governing clause is, *^The Legislature of 
the United States shall have the power." 
Then follow some 22 declarations of power, 
properly paragraphed: *^To lay and collect 
taxes, duties, imposts and excises." ^^To 
regulate commerce" etc., etc., until in a final 
paragraph he sums up and closes the record 
of these powers by the paragraph, ^^And to 
make all laws for carrying the foregoing- 
powers into execution." The power to pun- 
ish treason Pinckney placed in a distinct para- 
graph for reasons stated in chapter XI. But 
this compelled him to rewrite the governing 
clause, ''The Legislature of the United States 
shall have the power." In the same sentence 
he appended the definition of treason, ''which 
shall consist only in levying war against the 
United States" etc. And he then (following 

221 



THE PINCKNEY DRAUGHT 

tlie Act of Edward III), in a separate sentence 
imposed tHs condition upon conviction of 
treason that it shall be *'but by the testimony 
of two witnesses.'' Wbat Pinckney should 
have done was what Wilson did; he should 
have placed this power with the others under 
the first governing clause, ^^The Legislature 
of the United States shall have the power," 
and have pushed the limitations upon that 
power over with those relating to ^^the sub- 
ject of religion," 'Hhe liberty of the press" 
and ^Hhe writ of habeas corpus," into a bill 
of rights. 

This oversight of Pinckney 's, the Commit- 
tee of Detail attempted to hide but not to 
rectify. The needless duplication of the 
words, ^^The Legislature of the United States 
shall have the power," they pushed out of 
sight by inverting the provisions of the sen- 
tence and defining treason first; but they re- 
tained it; and also in this article, properly 
relating only to legislative powers, they re- 
tained the condition laid upon the judiciary 
that ''no person shall be convicted of treason 
unless on the testimony of two witnesses" 
(Article VII, sec. 2), and in doing these things, 

222 



COMMITTEE'S USE OF THE DEAUGHT 

the Committee overruled Wilson and followed 
Pinekney. 

It is manifest, therefore, that the two 
draughts, the draught in the State Depart- 
ment and the draught of the Committee, are 
built upon the same framework. That is to 
say in structure, arrangement, form and order 
the two are identical, the one the basis of 
the other. In other words, the Committee 
took the draught which had been referred to 
them, and worked upon it, beginning with the 
preamble, and continuing to the last sentence, 

*^The ratification of the conventions of 

States shall be sufficient for organizing this 
Constitution." They amended, changed, sub- 
stituted, subdivided (articles into sections), 
and amplified; but it was always Pinekney 's 
draught which they worked upon. They re- 
tained every provision of his which was 
authorized by the instructions of the Conven- 
tion, and some which were beyond the scope 
of the instructions and a few which were con- 
trary to the instructions; and whenever they 
retained a provision, they retained, substan- 
tially, the language in which it had been cast 
by Pinekney. As in mathematics it is held to 

223 



THE PINCKNEY DEAUGHT 

be self-evident that things which are equal to 
the same thing are equal to each other, so here 
it may be said that this extraordinary identity 
of the draught in the State Department and 
the draught of the Committee of Detail dem- 
onstrates that the draught in the State De- 
partment is a true and substantially exact 
duplicate of the lost draught which was re- 
ferred to the Committee. 



224 



CHAPTER XIII 

WHAT BECAME OF THE DRAUGHT 

A QUESTION of much interest follows 
tlie foregoing investigation; to-wit, wliy 
was not the Pinckney draught found among 
the records and papers of the Convention? 

It was the only draught of a constitution 
which had been before the Convention; it had 
been referred to the Committee of the Whole 
and referred to the committee charged with 
the duty of preparing a draught of the Con- 
stitution; and that committed had used it for 
that purpose. It was a paper of unique char- 
acter and unquestionable importance and one 
of the records of the Convention. Why was it 
not found in the sealed package of the Con- 
vention's records? 

And there was another paper, which should 
have been found but was not. This was the 
report of the Committee of Detail, containing, 
or accompanying, their draught of a Constitu- 
tion. The absence of any other paper that 

225 



THE PINCKNEY DRAUGHT 

should have been placed in the package might 
be strange, yet not significant. But these 
two papers, if there were two, related to the 
same subject, contained more or less the same 
provisions, had been used for the same most 
important purpose by the same men, and were 
on the 6th of August, 1787, if they then ex- 
isted, in the possession and official custody of 
the Committee of Detail. When Eutledge on 
the morning of that day ^^ delivered in" the 
most important report ever laid before the 
Convention he should have laid upon the Sec- 
retary's desk those two papers, if there were 
such to lay there. Yet neither Pinckney's 
draught of the Constitution, nor the Commit- 
tee's draught of the Constitution, was found 
in the sealed package ; nothing was found but 
one printed copy of the Committee's draught. 
The draught of the Committee of Detail was 
the most important of all the papers of the 
Convention, for the reason that it was the 
embodiment of all that had been done during 
the first period of the Convention's work, the 
abstract stage, and was to be the foundation 
of all that was yet to be done in bringing the 
Constitution to its concrete and final form. 

226 



WHAT BECAME OF THE DEAUGHT 

For purposes of construction and interpreta- 
tion the draught is the most valuable paper 
that exists or that ever did exist, inasmuch as 
it sets forth in a tangible, practical, unmistak- 
able form the results so far attained and the 
views which a majority of the members held, 
and the conclusions which a majority of the 
States had reached when the work of ab- 
stract consideration ceased, and the work of 
changing their abstract ideas into the concrete 
provisions of the Constitution began. There 
was no other report, draught or document 
which should have been so watchfully guarded 
and carefully kept as the report of the Com- 
mittee of Detail, if there were indeed such a 
document to preserve. 

To comprehend and appreciate the signifi- 
cance of the disappearance of these two 
papers, it is necessary that we understand 
the conditions of the case — the circumstances 
which tended toward their destruction, and 
those which should have secured their preser- 
vation. 

The first of these conditions was secrecy. 
The Convention early determined ^ ' That noth- 
ing spoken in the House be printed or other- 

227 



THE PINCKNEY DRAUGHT 

wise published or communicated without 
leave." No reporter was present at the sit- 
tings of the Convention; no stenographer, 
typewriter or amanuensis served the mem- 
bers ; no clerical force aided the Committee of 
Detail. The secrets of the Convention were in 
the custody of the members, and from the 29th 
of May to the 17th of September not one was 
revealed to the expectant, inquisitive, anxious 
American world. 

As the work of the Convention drew to- 
ward its close, it was determined that the ob- 
ligation of secrecy should be continued into 
the indefinite future. The records were to be 
placed under seal and the custodian was to be 
Washington himself. Washington asked what 
should be done with the records ; and the Con- 
vention answered that '^he retain the Journal 
and other papers subject to the orders of 
Congress, if ever formed under the Constitu- 
tion." For thirty years and more the seals 
remained unbroken ; and for thirty years and 
more no member of the Convention spoke. 

Let the reader imagine, if he can, what 
would be the public feeling now, if a conven- 
tion should be sitting from the 29th of May to 

228 



WHAT BECAME OF THE DEAUGHT 

the 17tli of September to frame a new consti- 
tution for tlie United States which should sit 
with closed doors, and whose members should 
disclose no act, speak no word, drop no hint 
from the beginning to the end ; and who, when 
the end was reached, should say absolutely 
nothing of what had been said and done in the 
secret proceedings of the Convention. We 
owe much to the f ramers of the Constitution ; 
they were not common men. 

The first and highest instance of this sense 
of obligation is where we should expect to 
find it, in the personal journal of Washing- 
ton. 

** Friday, 1st June. 

** Attending in Convention — and nothing 
being suffered to transpire no minute of the 
proceedings has been, or will be inserted in 
this diary/' 

And for this reason, no member of the Com- 
mittee wrote. The unfortunate Observations 
of Pinckney were the only publication that 
gave a glimmer of what had been done, or 
might have been done in the Convention — of 
what had been said or might have been said. 

229 



THE PINCKNEY DEAUGHT 

The Journal of Madison was not published 
until after Congress had released the secrets 
of the Convention. The members had taken 
no solemn oath, nor clasped hands nor pledged 
their honor to each other, but they kept 
silence. 

A single incident fortunately preserved by 
William Pierce of Georgia will show how the 
obligation was regarded during the sitting of 
the Convention. It grandly displays the per- 
sonal majesty of Washington, and the value 
which he set upon the secrecy of the Conven- 
tion's deliberations. To a better apprecia- 
tion of what took place it must be remembered 
that the Convention as a mark of respect for 
their great presiding officer established this 
rule: ^'When the House shall adjourn, every 
member , shall stand in Ms place until the 
President pass him," 

Mr. Pierce says : 

''When the Convention first opened at Phila- 
delphia, there were a number of propositions 
brought forward as great leading principles 
for the new Government to be established for 
the United States. A copy of these proposi- 
tions was given to each Member with an in- 

230 



WHAT BECAME OF THE DEAUGHT 

junction to keep everything a profound secret. 
One morning, by accident, one of the Members 
dropt his copy of the propositions, which 
being luckily picked up by General Mifflin was 
presented to General Washington, our Presi- 
dent, who put it in his pocket. After the 
Debates of the Day were over, and the ques- 
tion for adjournment was called for, the Gen- 
eral arose from his seat, and previous to his 
putting the question addressed the Conven- 
tion in the following manner: — 

'Gentlemen: I am sorry to find some one 
Member of this Body, has been so neglectful 
of the secrets of the Convention as to drop in 
the State House a copy of their proceedings, 
which by accident was picked up and delivered 
to me this Morning. I must entreat. Gentle- 
men, to be more careful, lest our transactions 
get into the News Papers, and disturb the pub- 
lic repose by premature speculations. I know 
not whose paper it is, but there it is (throwing 
it down on the table), let him who owns it take 
it. ' At the same time he bowed, picked up his 
Hat, and quitted the room with a dignity so 
severe that every Person seemed alarmed ; for 
mj part I was extremely so, for putting my 

231 



THE PINCKNEY DEAUGHT 

hand to my pocket I missed my copy of the 
same Paper, but advancing up to the Table my 
fears soon dissipated; I found it to be the 
handwriting of another person. When I went 
to my lodgings in the Indian Queen, I found 
my copy in a coat pocket which I had pulled 
oif that Morning. It is something remarkable 
that no Person ever owned the Paper. ^' (3 
Amer. Hist. Eeview, 324.) 

The obligation of secrecy required that 
these two papers should not be lost — that they 
should not be left where they might fall into 
the hands of someone who would publish them, 
that they should not remain in the possession 
of a member; and the final determination of 
the Convention implied that these two papers 
should be delivered by the Committee of De- 
tail into the hands of the Secretary of the 
Convention and be by him placed in the cus- 
tody of Washington. 

The second condition was time — the time 
within which the Committee's work must be 
done. 

On Thursday, the 24th of July, the Conven- 
tion appointed the Committee of Detail *^for 
the purpose of reporting a Constitution, ' ' and 

232 



WHAT BECAME OF THE DRAUGHT 

on the 26th, referred to the Committee certain 
resolutions and ^^ adjourned until Monday, Au- 
gust 6th, that the Committee of Detail might 
have time to prepare and report the Consti- 
tution." This adjournment gave to the Com- 
mittee ten full days in which to prepare and 
complete their draught, two of which were 
Sundays. The committee moreover deter- 
mined to furnish to each member of the Con- 
vention a printed copy. On Monday, the 6th 
of August, the Committee appeared in the 
Convention bringing with them the printed 
copies of the draught. 

The draught contains about 3,600 words. 
A good printer in the olden days when there 
was not a typesetting machine in the world 
would have required (according to the compu- 
tation of a present day printer) three days for 
doing the work, allowing therein a reasonable 
time for changes and corrections made in the 
proofs. It cannot be supposed that after the 
admonition of Washington, the Committee 
could be negligent in their selection of a 
printer. They would not carry their copy 
into a large printing office, if any such there 
was in Philadelphia, but would surely place 

233 



THE PINCKNEY DRAUGHT 

it in the hands of some individual printer rec- 
ommended to them as trustworthy by Wilson 
or Gouverneur Morris or some other delegate 
from Philadelphia, perchance by Franklin, the 
greatest printer in the world. In a word, the 
printing would not have been confided to a 
shop full of men but would have been given to 
one man and marked ' ' confidential ' ' ; and it is 
safe to say that the copy must have been in 
the printer's hands by the close of the 7th 
day. Besides the typesetting, the proofs 
were to be examined, and the work scanned in 
the clearer light ot printed matter by every 
member of the committee ; and errors were to 
be corrected, and possibly changes made. 

After these ten days of actual and con- 
structive work the Committee appeared in the 
Convention bringing with them a draught con- 
taining fifty-seven articles and sections, and 
some 200 constitutional provisions. Some of 
these provisions had been prescribed by the 
23 resolutions, and some had been suggested 
by the Articles of Confederation, but there 
were others declaratory of the inherent pow- 
ers of a national sovereignty which had neither 
been directed by the Convention, nor were 

234 



WHAT BECAME OF THE DRAUGHT 

contained in the Articles of Confederation. 
No reflective person beginning the study of 
the Constitution can read Madison's Journal 
attentively through to the 26th of July with- 
out being astonished by the greater compre- 
hensiveness and detail and breadth and com- 
pleteness of the draught which the committee 
produced in a printed form on the morning of 
the 6th of August. 

Besides the provisions in the draught which 
have passed into, and in a literal or modified 
form, have become parts of the Constitution, 
there was some work of the committee which 
must have involved consideration, discussion, 
and a waste of time. These hindrances left 
a perilously narrowed period within which a 
committee must draught the Constitution of 
the United States. 

It was therefore no time to stand upon tri- 
fles or to pause to adjust formal niceties. 
Within the closed doors of Independence Hall 
would be impatient men who had given their 
time since the 25th of May and who were sit- 
ting unceasingly through the heat of the Phil- 
adelphia summer, defraying in whole or in 
part their own expenses, though many of them 

235 



THE PINCKNEY DRAUGHT 

were men of narrow means, ill able to give 
either their time or their money. To their 
anxions eyes the end seemed far away, and 
success far from certain, and they would re- 
sent unnecessary delay. It would be just to 
young, ambitious Mr. Pinckney to return his 
draught, unsullied, to the Secretary that it 
might tell the story in future years, unques- 
tioned and unquestionable, of his splendid con- 
tribution to the Constitution. It would be 
proper and according to parliamentary usage 
for the committee to hand in their draught 
in writing, covered by a report attested by 
their signatures, both of which would remain 
in the archives of the Convention and perhaps 
in the archives of a future government. But 
the committee could not linger for these desir- 
able things. Pinckney 's draught must be sac- 
rificed to hasten the good work along, to save 
time, if it were but a day ; and their own report 
and draught must be ^^ delivered in'' figura- 
tively, that is to say by the mouth of their 
chairman and by the means of the printed 
copies, one for each member. The committee, 
so all the circumstances unite in telling us, took 
Pinckney 's draught and considered it; some 

236 



WHAT BECAME OF THE DRAUGHT 

provisions they retained ; some they corrected, 
some they amended, some they changed, some 
they struck out. The amendments they wrote 
on the broad margin of the large foolscap 
sheets or wrote out on separate slips of paper 
which they waf ered to the margin. When they 
had fininshed this work Pinckney's draught 
had become ^ Sprinter's copy." For one brief 
week it served a great purpose and was the 
most useful document in the world. Then it 
was scrupulously destroyed ; and concerning it 
no man of the men who knew its contents is 
known to have spoken a single word. 

Apart from the inferential and conjectural 
statements of the preceding paragraph, the 
stricter principles of law lead to or toward the 
same conclusion. The draught was placed in 
the committee's hands to be used but not to 
be destroyed. Nevertheless the right to use, 
like the right of eminent domain, was com- 
mensurate with the necessities of the situation, 
and the committee might use it by destroying 
it. 

The law allows within certain limitations, 
the presumption of fact that where an admin- 
istrative officer had a certain, specific official 

237 



THE PINCKNEY DRAUGHT 

duty to perform, he performed it. The Secre- 
tary of the Convention and the members of the 
Committee of Detail were not public officers 
but were charged with duties which, if not 
official, were still public, and the obligations 
and presumptions belonging to administrative 
officers may properly be applied to them. The 
Secretary's entry in the Journal of the Con- 
vention says, '^The report was then delivered 
in at the Secretary's table, and being read 
once throughout, and copies thereof given to 
the members, it was moved and seconded to 
adjourn." All that there was to be ^'deliv- 
ered in," was placed upon the Secretary's 
table, and it became his duty to preserve what- 
ever the Committee had placed there subject 
to the future commands of the Convention. 
The '* copies thereof" were the printed copies 
of the draught; and 'Hhe report" which was 
''then delivered in at the Secretary's table" 
was one of the printed copies accompanied by 
the oral explanation of the chairman. 

What the Secretary did with the papers in 
his charge is told in the following note and 
extract : 

238 



WHAT BECAME OF THE DRAUGHT 

** Monday Evening. 

''Major Jackson presents Ms most respectful 
compliments to General Washington. . . . 

''Major Jackson, after burning all the loose 
scraps of paper which belong to the Conven- 
tion, will this evening wait npon the General 
with the Journals and other papers which 
their vote directs to be delivered to His Excel- 
lency. ' ' 

Indorsed by Washington : 

"From Maj^ Wm. Jackson, 17th Sept., 
1787.'' 

"Monday, 17th. 
"Met in Convention when the Constitution 
received the unanimous assent of 11 States 
and Col" Hamilton's, from New York (the 
only delegate from thence in Convention) and 
was subscribed to by every Member present 
except Gov"" Randolph and Col'' Mason from 
Virginia — & Mr. Gerry from Massachusetts. 
The business being thus closed, the Members 
adjourned to the City Tavern, dined together 
and took a cordial leave of each other. — after 
which I returned to my lodgings — did some 
business with, and received the papers from 

239 



THE PINCKNEY DRAUGHT 

the secretary of the Convention, and retired 
to meditate upon the momentous wk which 
had been executed, after not less than ^ve^ for 
a large part of the time six, and sometimes 7 
hours sitting every day, Sundays & the ten 
days' adjournment to give a Com^^ opportu- 
nity & time to arrange the business, for more 
than four months/' Washingtoit 's Diary. 

The Secretary of the Convention has gen- 
erally been censured as incompetent and negli- 
gent. Nevertheless the papers which he trans- 
ferred to Washington witness for him that he 
did preserve and keep whatever papers came 
within his official custody. The Secretary of 
State certified, March 19th, 1796, that in addi- 
tion to the Journals then received from Wash- 
ington ''were seven other papers of no conse- 
quence in relation to the proceedings of the 
Convention. ' ' One of these is a ' ' draught of 
the letter from the Convention to Congress to 
accompany the Constitution''; one is an order 
from ''the directors of the Library company 
of Philadelphia" to the Librarian directing 
him to "furnish the gentlemen who compose 

240 



WHAT BECAME OF THE DRAUGHT 

the Convention now sitting with, snch books as 
they may desire during their continuance at 
Philadelphia, taking receipts for the same''; 
one is a letter from ' ^ one of the people called 
Jews'' setting forth that by the Constitution 
of Pennsylvania ''a Jew is deprived of hold- 
ing any publick office or place of Government. ' ' 
The others are even of less consequence. They 
make plain by their unimportance the impor- 
tant fact that Major Jackson scrupulously kept 
every paper which Rutledge ^^ delivered in at 
the Secretary's table" on the 6th of August. 
That is to say, it is made plain that on the 6th 
of August, Rutledge did not deliver in at the 
Secretary's table either a written report of 
the committee or the Pinckney draught. 

Judging in the light of all the facts which 
the case discloses we must conclude that the 
only thing which would have justified the Com- 
mittee of Detail in not returning the Pinckney 
draught to the Secretary of the Convention 
was that it had been destroyed ; the only thing 
which would have justified the Committee in 
destroying it, was that they were compelled 
to use it as printer's copy. 

241 



y 



THE PINCKNEY DRAUGHT 

The Committee did well to use it. And yet 
if there was one thing in the world which jus- 
tified Pinckney in publishing the Observations, 
it was that the Committee of Detail had de- 
stroyed his draught. 



242 



CHAPTER IV 

WHAT PINCKNEY DID FOR THE CONSTITUTION 

THE style of the Constitution, we owe to 
Pinekney. Behind him, perhaps, was 
Chief Justice Jay, whose hand appears in the 
first Constitution of New York, but none of 
the men connected with the Convention, not 
even Hamilton, had attained what we may 
term the style of the Constitution — the clear, 
concise, declarative, imperative style which 
seems a characteristic part of the great 
instrument. Pinekney appreciated the differ- 
ence between a constitution and a statute and 
in maintaining this difference his hand rarely 
erred. The Committee of Detail corrected 
Pinekney 's language, occasionally, and some- 
times rendered the meaning more certain by 
amplification but whenever they departed from 
his draught, there is an immediate falling off 
in style. A flagrant instance of this is in 
article IX, sections 2 and 3. In the hands of 

243 



THE PINCKNEY DRAUGHT 

the Committee the provision relating to dis- 
putes and controversies between States ex- 
pands into a string of minor provisions con- 
taining more than 400 words with all the 
involved petty particularities of an incoher- 
ent statute. Exempli gratia, **The Senate 
shall also assign a day for the appearance 
of the parties, by their agents before that 
house. The agents shall be directed to ap- 
point, by joint consent, commissions or judges 
to constitute a court for hearing and deter- 
mining the matter in question. But if the 
agents cannot agree, the Senate shall name 
three persons out of each of the several 
States ; and from the list of such persons, each 
party shall alternately strike out one, until 
the number shall be reduced to thirteen; and 
from that number not less than seven, nor 
more than nine, names, as the Senate shall 
direct, shall in their presence, be drawn out 
by lot ; and the persons whose names shall be 
so drawn, or any five of them, shall be,^'. etc., 
etc. The person who remembers that this and 
more like it, was actually prepared and 
printed and reported to the Convention as a 
proposed part of the Constitution of the 

244 



WHAT PINCKNEY DID 

United States, may well wonder what kind of 
a Constitution the Committee of Detail would 
have framed, if they had not had Pinckney 
to block out their work for them. 

When dealing with the number of repre- 
sentatives in the first or lower house, Pinck- 
ney provided (Art. 3) for a specific number 
from each State, in the first instance, and then 
by one of his terse emphatic sentences, ^^and 
the legislature shall hereafter regulate the 
number of delegates by the number of inhabit- 
ants, according to the provisions hereinafter 
made at the rate of one for every thou- 
sand. ' ' The Committee adopted this verbatim 
but they prefaced it with an extraordinary apol- 
ogy or explanation, bearing some resemblance 
to the preamble of a statute (Art. 14, sec. 4) : 
**As the proportions of numbers in different 
States will alter from time to time; as some of 
the States may hereafter be divided ; as others 
may be enlarged by addition of territory; as 
two or more states may be united; as new 
states will be erected within the limits of the 
United States — the legislature shall, in each of 
these cases, regulate the number of representa- 
tives by the number of inhabitants, according 

245 



THE PINCKNEY DEAUGHT 

to the provisions hereinafter made, at the rate 
of one for every forty thousand/' 

This '^as,'' ^'as," ^'as/' ''as/' ''as" would 
be slovenly work even for a statute. It sounds 
little like a law, not at all like a constitution, 
much like an extract from a committee's re- 
port, justifying their work, explaining why 
a proposed provision may become at some 
unforeseen time, necessary or desirable. 

It is true that the former of these provi- 
sions was taken from the Articles of Confed- 
eration; and that the latter is a paraphrase 
of the 8th resolution, but that only makes the 
matter worse. Their verbosity and incongru- 
ity were thereby placed before the eyes of 
every member of the Committee ; and the fact 
that such provisions, flagrantly verbose and 
inexcusably incongruous, went into a draught 
of the Constitution shows that not one of the 
"Oyb members commanded what may be called 
the style of the Constitution; while the addi- 
tional fact that not one instance of such pro- 
lixity of detail is to be found in the Pinckney 
draught shows that he was the master of its 
style and not the Committee. 

There are unquestionably clauses and sen- 

246 



WHAT PINCKNEY DID 

tences and provisions in the Committee's 
draught which show the hand of the thought- 
ful statesman or of the good lawyer. Thus to 
Pinckney's provisions relating to the action 
of Congress on bills returned by the Presi- 
dent with his objections, we have, ^^But, in all 
cases, the votes of both Plouses shall be de- 
termined by yeas and nays; and the names 
of the persons voting for or against the bill 
shall be entered on the Journal of each House 
respectively." And to Pinckney's provisions 
concerning the conviction of treason, there 
is added, ''No attainder of treason shall work 
corruption of blood, nor forfeiture, except 
during the life of the person attainted.'' In 
a word there is manifestly more than one hand 
in the Committee's work. In Pinckney's 
draught the warp and woof is of one texture 
from beginning to end. Even when an article 
is made up entirely of cullings from State 
constitutions and from the Articles of Con- 
federation, the finished fabric is unquestion- 
ably of Pinckney's weaving. 

It is not to be inferred that the members of 
the Comittee of Detail were mediocre men or 
that they were negligent of the grave duty as- 

247 



THE PINCKNEY DRAUGHT 

signed to them. Yet the work which they 
actually did only demonstrates that for them 
to have produced a complete draught of the 
Constitution — as complete as the one which 
they reported — entirely the work of their own 
hands, in the limited time allowed them would 
have been an impossibility. The reduction of 
the Constitution to a written form with all its 
details required research, reflection, patient 
work and unhurried thought. Through the 
wide field of State and Federal relations, 
through State constitutions and the Articles 
of Confederation the framer needed to search, 
weighing State prejudices and national neces- 
sities, taking what was desirable, but with 
equal care leavng what was objectionable. 
There were not five men in the world working 
in each other's way, discussing each other's 
work, who, unassisted, could have drawn up a 
constitution in which so much was embodied 
and so little overlooked and have brought their 
patchwork contributions into one harmonious 
whole within the time prescribed. The coun- 
try was well filled with men of talents, of abil- 
ity, of energy, of patriotic fervor, with men 
who knew the conditions of our national af- 

248 



WHAT PINCKNEY DID 

fairs, the difficulties of acting, the perils of 
inaction, and yet the fact, undeniable, is that 
only one man foresaw the coming necessity of 
the situation and had the forethought to pre- 
pare a draught of the Constitution for the use 
of the Convention. The more I have surveyed 
the situation, the greater has appeared the 
necessity for some such work at the time ; the 
more I have studied the work of Pinckney, the 
more perfectly adapted to the necessities of 
the situation does it appear to have been. 

When Pinckney, foreseeing that a national 
Convention would be held and that if it failed 
to frame a constitution which would give to 
the waning Confederation the character and 
authority of nationality, the nationality of the 
Confederated States might disappear, he reso- 
lutely assigned to himself the task of framing 
one in which nationality should be secure and 
a national government above and independent 
of the States be the result. While yet a mem- 
ber of Congress he saw plainly these things — 
that the government of the Confederated 
States was drifting toward insolvency, for 
New York and Massachusetts alone had paid 
in full their quota of the Federal expenses; 

249 



THE PINCKNEY DEAUGHT 

that it was drifting towards war ; for at least 
one of the States was jflagrantly violating the 
treaty of peace with Great Britain; that the 
Congress could neither raise money nor main- 
tain a treaty; for the only power which it 
practically possessed was to beseech the States 
to pay their respective shares of the Feder^tl 
expenses, and to pass as recently as March 21, 
1787, resolutions urging on the States a repeal 
of all laws contravening the treaty of peace 
with Great Britain. 

Pinckney was then in the full flush of youth- 
ful egoism, but the oldest member of the Con- 
vention, even Franklin, could not have chosen 
his method of construction more wisely. 
Wherever constitutional material existed, 
Pinckney found it, and preferred it to his 
own. A single paragraph will give an e:ffec- 
tive object lesson of his careful composite 
work: 

^ ' The United States shall not grant any title 
of nobility '' (Art. Confederation VI). ^'The 
Legislature of the United States shall pass 
no law on the subject of religion" (Consti- 
tution of New York) ; '^nor touching or abridg- 
ing the liberty of the press'' (Constitution 

250 



WHAT PINCKNEY DID 

Massachusetts); ^^nor shall the privilege of 
the writ of habeas corpus ever be suspended 
except in case of rebellion or invasion" (Con- 
stitution Mass.). 

The resolution of March 21, 1787 is as fol- 
lows: 

''Wednesday, March 21, 1787. 
''Eesolved, That the legislatures of the sev- 
eral states cannot of right pass any act or 
acts, for interpreting, explaining, or constru- 
ing a national treaty or any part or clause 
of it; nor for restraining, limiting or in any 
manner impeding, retarding or counteracting 
the operation and execution of the same, for 
that on being constitutionally made, ratified 
and published, they become in virtue of the 
confederation, part of the law of the land, and 
are not only independent of the will and 
power of such legislatures, but also binding 
and obligatory on them." 

This becomes in the draught: 

''All acts made by the Legislature of the 
United States, pursuant to this Constitution, 
and all Treaties made under the authority of 
the United States, shall be the Supreme Law 

251 



THE PINCKNEY DEAUGHT 

of tlie Land; and all Judges shall be bound to 
consider them as snch in their decisions." 

I have spoken of the sentence, *'The citi- 
zens of each State shall be entitled to all priv- 
ileges and immunities of citizens in the several 
States" as the most felicitous sentence in the 
Constitution, which passed through the Com- 
mittee of Detail, the Committee of Style, and 
the Convention without the change of a single 
word. But in the Articles of Confederation 
the provision stood in this prolix form: 

^^The better to secure and perpetuate 
mutual friendship and intercourse among the 
people of the different States in this union, the 
free inhabitants of each of these States, pau- 
pers, vagabonds, and fugitives from Justice 
excepted, shall be entitled to all privileges and 
immunities of free citizens in the several 
States; and the people of each State shall 
have free ingress and egress to and from any 
other State, and shall enjoy therein all the 
privileges of trade and commerce, subject to 
the same duties, impositions and restrictions 
as the inhabitants thereof respectively, pro- 
vided that such restriction shall not extend so 
far as to prevent the removal of property 

252 



WHAT PINCKNEY DID 

imported into any State, to any other State 
of which the owner is an inhabitant. ' ' 

That the work was Pinckney's we know, 
for the provisions set forth in articles 12 and 
13 of his draught are described in the Obser- 
vations. 

Bnt though the work of Pinckney was built 
of the thoughts, phrases and provisions of 
other men, the structure was his own; and in 
its details as in its general design, he never 
failed in his intent that the new republic which 
he was trying to found should be a nation, and 
that its government should have all the 
powers, duties, responsibilities and authority 
essential and incidental to nationality. The 
thought may have been in other minds but 
another draughtsman by a slight change of 
expression might have warped the idea and 
left it of no avail. It is this comprehensive 
generality of treatment and expression which 
I am now inclined to hold was Pinckney 's 
greatest contribution to the Constitution. In- 
deed if Marshall had laid his hand on Pinck- 
ney 's shoulder and said, ''Young man, so 
frame your constitution that I shall be able 
to interpret it according to the necessities of 

253 



THE PINCKNEY DRAUGHT 

the Republic and in harmony with the general 
requirements of our nationality," Pinckney 
would not have needed to change a single line. 
For more than 70 years, Pinckney has been 
a condemned and misrepresented man, and 
what is strange, though not inexplicable, his 
disgrace was primarily caused by the indis- 
pensable work which he unselfishly performed 
for his country without honor and without re- 
ward. I began the foregoing investigation of 
the authenticity and verity of the draught in 
the State Department in consequence of the 
publication of Pinckney 's letter to the Secre- 
tary of State in 1818 in which he states 
frankly that the paper sent is not a literal 
duplicate of the draught presented to the Con- 
vention and that the draught contained pro- 
visions which he subsequently condemned and 
openly opposed during the debates. I knew 
of the worst side of Pinckney 's character — 
his egoism, his garrulousness, his lack of cau- 
tious common sense — and in my early study 
of the Constitution the Pinckney draught had 
seemed too much to be the work of one man, 
and the charges of Madison with the implica- 
tions of Elliot and the silence of Story and 

254 



WHAT PINCKNEY DID 

the censure of Bancroft had confirmed my sus- 
picion and left me with a poor opinion of the 
draught in the State Department and of the 
man who placed it there. The most which I 
expected from this investigation was that I 
should be able to say with tolerable certainty 
that a section here or a paragraph there in 
the Constitution, was the work of Pinckney. 
But when under the pressure of unquestion- 
able facts, the charges of Madison fell to 
pieces; and when with the refutation of a 
charge, just so much of the draught would be 
positively verified and affirmed ; and especially 
when it plainly appeared, not only that in sec- 
tions and articles, and provisions and sen- 
tences, the one instrument agreed with the 
other but that in form and style, and phrase- 
ology and arrangement from the words of the 
preamble, '^We the people do ordain, declare, 
and establish the following Constitution for 
the government of ourselves and posterity" 
to the words of the last article, ' * The ratifica- 
tions of States shall be sufficient for or- 
ganizing this Constitution,'' the draught of 
the Committee of Detail follows the draught 
in the State Department, and the Constitution 

255 



THE PINCKNEY DEAUGHT 

follows the draught of the Committee of De- 
tail, I was slowly forced to the conclusion that 
the young South Carolinian on whom I had 
placed no high estimate, had rendered a great 
service at a critical time, and that but for his 
needed work, the Constitution would be, at 
least in form, a very different instrument 
from the one which we revere. My slowly 
formed conclusion is that if wise and judicious 
forethought, and much patient work well done, 
and a breadth of view commensurate with the 
greatness of the subject, and the production at 
a critical moment of a paper which all other 
men in or out of the Convention had neglected 
to prepare, entitle a man to the lasting rec- 
ognition of his countrymen, there is no framer 
of the Constitution more entitled to be com- 
memorated in bronze or marble than Charles 
Pinckney of South Carolina. 



256 



CHAPTER XV 

CONCLUSIONS ON THE WHOLE CASE 

THERE are three reasons why the Pinck- 
ney Draught has been too readily dis- 
credited. The first is our respect for Mad- 
ison, onr belief that his knowledge far exceed- 
ed our own, and onr deference to his repeat- 
edly expressed opinion. The second is that 
the draught was never before the Convention 
and consequently never received the recogni- 
tion of discussion. It was referred at the be- 
ginning to the Committee of the Whole ; but it 
was not yet wanted, for the Committee de- 
bated only abstract propositions couched in 
formal resolutions. It was referred to the 
Committee of Detail ; but that Committee re- 
ported only their own draught and the Con- 
vention had before them only the Committee's. 
The draught of Pinckney never came to a 
vote, was never discussed, and never received 
the slightest consideration in the Convention. 
The third reason for discrediting the 

257 



THE PINCKNEY DEAUGHT 

draught is to be found in the exaggerated 
value which has been set upon it. It has 
seemed to be altogether too great an instru- 
ment to have been the work of one man. We 
have felt in a vague way that to concede that 
one man could have contributed so much to the 
great instrument would be to detract from the 
work and fame of the great men whom we call 
the framers of the Constitution, and from the 
Constitution itself. 

But the fact is that the draught of Pinckney 
is not so great as it seems. Coming from a 
man so well equipped for the work, so ex- 
perienced in the existing affairs of our mixed 
governments and with such a clear compre- 
hension of the conditions of the case, and hav- 
ing such a mass of material ready to his hand, 
the draught is not a marvelous production. 
That is to say the work considered as the work 
of so young a man is not so wonderful as at 
first it appears to be. It may come within the 
range of the improbable but not of the impos- 
sible. 

Madison has himself borne witness to the 
fact that the subject of a substitute for the 
tottering power of the Confederated States 

258 



CONCLUSIONS ON THE WHOLE CASE 

was in every man's mind; and that every in- 
telligent man of that day was more or less 
fitted to draught a general outline of a new 
national government: 

*'The resolutions of Mr. Eandolph, the basis 
on which the deliberations of the Convention 
proceeded, were the result of a consultation 
among the Virginia deputies, who thought it 
possible that, as Virginia had taken so lead- 
ing a part in reference to the Federal Conven- 
tion, some initiative propositions might be ex- 
pected from them. They were understood not 
to commit any of the members absolutely or 
definitively on the tenor of them. The reso- 
lutions will be seen to present the character- 
istics and features of a government as com- 
plete (in some respects, perhaps more so) as 
the plan of Mr. Pinckney, though without be- 
ing thrown into a formal shape. The moment, 
indeed, a real constitution was looked for as a 
substitute for the Confederacy, the distribu- 
tion of the Government into the usual depart- 
ments became a matter of course with all who 
speculated upon the prospective change.'' 
Letter to W. A. Duer, June 5th, 1835. 

The difficulty of the hour was not in 

259 



THE PINCKNEY DEAUGHT 

draughting a constitution, but in draughting 
one which wonld not arouse the jealous antag- 
onism of the several States. That difficulty 
did not trouble Pinckney. His plan contem- 
plated having the people of each State fairly; 
i. e., proportionately represented in his House 
of Delegates, and in making the several States 
as States unequivocally submissive to the new 
national authority. 

Pinckney had been for two years immedi- 
ately before the sitting of the Convention, a 
delegate in the Congress of the Confedera- 
tion. He had been the representative of 
South Carolina in the ^ ^ grand committee ' ' ap- 
pointed to consider the alteration of the 
Articles of Confederation. He had been 
chairman of the subcommittee which draught- 
ed the committee's report of August, 1786; 
and (as Professor McLaughlin has pointed 
out) ''the introducing phrases, as appears by 
reference to the manuscript papers of the old 
Congress, were written in Pinckney 's own 
hand.'' In witnessing the inherent weakness 
and increasing degradation of the Congress, 
he had learned to appreciate the incapacity of 
the confederate system, and the necessity of a 

260 



CONCLUSIONS ON THE WHOLE CASE 

National government. No member of the 
Convention better appreciated those two 
things, or was better equipped for the task 
which he undertook; and there was no man 
in the country, except Madison, who had been 
through such a preparatory course and had 
such a combination of resources at his com- 
mand. He was young, talented, experienced, 
ambitious, wealthy, unemployed and a cease- 
less worker. The index of Madison's Journal 
witnesses to the immense amount of work 
which Pinckney did irrespective of the 
draught. If we discard the draught — the 
original draught, the disputed draught, and 
the draught described in the Observations, the 
fact will remain that Pinckney was an im- 
portant contributor to the work of framing the 
Constitution. 

Pinckney 's plan of government was precise- 
ly what we might expect it to be. He was an 
able but not a sagacious statesman ; that is he 
saw clearly what he wanted, but he did not see 
what other men wanted. Neither did he an- 
ticipate as a sagacious statesman would, the 
ignorance, the adverse interests and the preju- 
dices of those who ultimately would have the 

261 



THE PINCKNEY DRAUGHT 

power to reject or ordain the work of the Con- 
vention. Therefore he originated none of the 
compromises which reconciled antagonistic 
views and made the Constitution possible. 
The great and difficult problems which con- 
fronted the Convention were not solved by the 
Draught. Pinckney in it provided for two 
legislative houses and based representation on 
population, neglecting to place the small 
States on an equal footing with the large 
States in the Senate. He provided for one 
Executive head as did every government in 
the world, but he devised no means for uniting 
harmoniously the large and small States in 
choosing the Executive. The Draught was an 
admirable instrument for its purpose — an ad- 
mirable model for the workmen of the Con- 
vention to correct, alter and enlarge. It was 
crude and unfinished but it was in well chosen 
words and simple sentences, eschewing par- 
ticulars and presenting in a masterly way 
great declaratory principles of government. 
Pinckney had a few fanciful provisions in his 
plan and yet he was a practical and not a fan- 
ciful constitution-maker, not above taking the 
best material he could find wherever he could 

262 



CONCLUSIONS ON THE WHOLE CASE 

find it, resorting to himself last ; and not above 
throwing aside his own work and beginning 
again and again nntil he had patiently wrought 
out the best that his ability could do. But 
whert in estimating the Constitutional value of 
the draught, we have given credit for the ad- 
mirable construction of the plan of govern- 
ment and for the clear declaratory, style of the 
instrument, and for the preamble, and when 
we have discarded his original schemes, not 
adopted by the Convention, such as the plan 
for the Senate, we find that the remainder of 
the draught is made up for the most part of de- 
tails suggested by his experience in the Con- 
gress of the Confederated States, details 
which were culled by him with extraordinary 
care from the constitutions of New York and 
Massachusetts and the Articles of Confedera- 
tion. 

In a word, the provisions which were reject- 
ed, such as a Senate chosen by the House of 
Eepresentatives ; such as a Senate having **the 
sole and exclusive power" to declare war, to 
make treaties, to appoint foreign ministers and 
judges of the Supreme Court; such as a 
national legislature having power to ''revise 

263 



THE PINCKNEY DEAtJGHT 

the laws of the several States'' and ''to nega- 
tive and annuP' those wliicli infringed the 
powers delegated to Congress — do not cause 
either wonder or admiration. It is the val- 
uable practical provisions of the draught 
which provoke doubts. Yet these are for the 
most part the work of selection by an author 
thoroughly versed in what may be called the 
Constitutional literature and studies of the 
day, and who by experience knew precisely 
what was needed to transmute the Confeder- 
ated States into an efficient National govern- 
ment. 

In our minds we picture the framers of the 
Constitution as remarkable men, sage in 
council, experienced in affairs of state. But 
there were two young men, the one 36, the 
other 30, who furnished the constructive minds 
of the Convention. Madison was foremost in 
framing the Virginia resolutions, which 
brought before the Convention questions for 
abstract discussion and bases on which to rest 
principles of government. Pinckney formu- 
lated a constitution which became a basis for 
the most of the concrete work. Both had had 
the severe practical training of members of 

264 



CONCLUSIONS ON THE WHOLE CASE 

the Congress of the Confederated States dur- 
ing the sorest period of its humiliating help- 
lessness, the darkening days which preceded 
its dissolution. Both understood thoroughly 
the existing system which made the Federal 
government dependent upon its States and 
therefore inferior to them; and they knew by 
what had been to them bitter experience that 
the solvency of the Federal government was 
dependent upon the voluntary contributions 
of each and all of the States, and that a single 
one of the great States by refusing to pay its 
quota could bring the nation to bankruptcy. 
They knew too that while the general govern- 
ment could make treaties, the States could vio- 
late them — that they had violated them, and 
even then had brought the country to the 
verge of a foreign war. Their minds recoiled, 
as the minds of young men naturally would, 
to the opposite extreme, and each believed in 
the subversion of the States. How fully they 
agreed a single illustration will disclose. 

On Friday, June 8th, 

*'Mr. Pinckney moved 'that the National 
Legislature shd. have authority to negative 
all laws which they shd. judge to be improper.' 

265 



THE PINCKNEY DEAUGHT 

He urged that sucli a imiversality of the 
power was indispensably necessary to render 
it effectual; that the States must be kept in 
dne subordination to the nation; that if the 
States were left to act of themselves in any 
case, it wd. be impossible to defend the nation- 
al prerogatives, however extensive they might 
be on paper; that the acts of Congress had 
been defeated by this means ; nor had foreign 
treaties escaped repeated violations ; that this 
universal negative was in fact the corner stone 
of an efficient national Govt. ' ' 

'^Mr. Madison seconded the motion. He 
could not but regard an indefinite power to 
negative legislative acts of the States as ab- 
solutely necessary to a perfect System. Ex- 
perience had evinced a constant tendency in 
the States to encroach on the federal author- 
ity; to violate national Treaties; to infringe 
the rights and interests of each other; to 
oppress the weaker party within their 
respective jurisdictions. A negative was the 
mildest expedient that could be devised for 
preventing these mischiefs.'' 

But it was for these same reasons that 
neither Madison nor Pinckney attempted to 

266 



CONCLUSIONS ON THE WHOLE CASE 

frame a compromise. Each wanted a nation- 
al government with unequivocal powers. 
Each ignored the jealousy of the small States, 
the apprehensions of the slave States, the in- 
creasing preponderence of the free States. 
Both intended that these elements of distrust 
should be absorbed by the overwhelming 
power of the new national government. For 
more than 100 years the American people have 
kept the cardinal idea of these youthful states- 
men buried from sight or contemplation as 
something impractical or dangerous but they 
are now beginning to ask themselves whether ^^^ 
an overwhelming national government is not ff 
the better agency for the control and manage- 
ment of their modern, complex, national life. 

Considering that Madison and Pinckney ^ 
worked in such different fields, the abstract 
and the concrete, it is remarkable that the 
work of the one repeatedly and constantly 
agrees with the work of the other. Consid- 
ering that they had worked side by side for 
years conferring daily on the same absorbing 
subject, encountering the same difficulties, 
thwarted by the same obstacles, defeated by 
the same incapacities, their minds intent on 

267 



THE PINCKNEY DRAUGHT 

the same ends, it is not remarkable that an 
identity of purpose was followed, though in 
different forms, by an identity of results and 
that the work of Pinckney was little more than 
an embodiment of the propositions of Mad- 
ison. Together they furnished just what the 
necessities of the hour required, ideas of gov- 
ernment for consideration and discussion; 
formulated constitutional provisions for 
amendment and adoption. Greatly to be re- 
gretted it is that the two men who did such 
valuable interserviceable work for the cause to 
which their lives were then devoted, and whose 
names should be most closely associated in the 
history of the Constitution, now appear so 
irretrievably antagonistic. 

There are some provisions in the draught 
which are not sustained by the confirmatory 
fact of being incorporated in the draught of 
the Committee of Detail, and notablv the fol- 
lowing : 

''The legislature of the United States shall 
have the power" ''to pass laws for arming, 
organizing and disciplining the militia of the 
United States,'' Art. 6. This power to or- 
ganize and discipline the militia was a radical 

268 



CONCLUSIONS ON THE WHOLE CASE 

transfer of authority from the States to the 
new national government, a power which the 
committee were not instructed to transfer and 
which accordingly they did not incorporate in 
their draught. But it is specifically set forth 
in the Observations as one of the provisions of 
the draught ; and on the 18th of August Pinck- 
ney advocated in the Convention substantially 
the same thing. 

The draught also provides that the legisla- 
ture of the United States shall have power, 
^^To provide for the establishment of a seat 
of government for the United States, not ex- 
ceeding miles square, in which they shall 

have exclusive jurisdiction." Art. 6. This 
also was a radical innovation which the Com- 
mittee could not adopt without authority. But 
it was also specifically set forth in the Obser- 
vations; and on the 18th of August Pinckney 
moved in the Convention; 

**To fix and permanently establish the seat 
of government of the United States in which 
they shall possess the exclusive right of soil 
and jurisdiction. '^ 

The draught also provides, *'nor shall the 
privilege of the writ of habeas corpus ever be 

269 



THE PINCKNEY DRAUGHT 

suspended, except in cases of rebelliQn or in- 
vasion." Art. 6. 

The Convention shrank from the insertion 
of a hill of rights in the Constitution because, 
as was subsequently explained, it was feared 
that it might bring up the subject of slavery, 
one member insisting that it should contain a 
declaration against slavery, and another that 
it should specifically declare that it did not 
extend to slaves. Accordingly the committee 
did not incorporate this declaration of right 
in their draught. But it is set forth in the 
Observations; and on the 20th of August 
Pinckney proposed in the Convention a 
stronger and more explicit provision. 

These provisions, therefore, are sustained 
by the public, contemporaneous avowal of 
Pinckney that they were in the draught which 
he had prepared for the use of the Conven- 
tion; and by the recorded facts that when he 
found that the committee had not considered 
them as within their jurisdiction and had not 
incorporated them in their draught he brought 
them before the Convention and sought to 
have them inserted in the Constitution. As it 
is certain that the ideas were his, and that he 

270 



CONCLUSIONS ON THE WHOLE CASE ' 

formulated them into provisions substan- 
tially identical with those in the State Depart- 
ment draught, at the time when the Conven- 
tion was considering the respective subjects, 
it requires very little additional assurance to 
make us accept them as a part of the draught 
presented to the Convention. 

Conversely, there are provisions which may 
have been in the draught presented to the Con- 
vention, but which are not in the draught filed 
in the State Department. The most notable, 
of these is the one relating to patents and 
copyright. Pinckney says in the Observa- 
tions ** There is also an authority to the na- 
tional legislature'' *Ho secure to authors the 
exclusive right to their performances and dis- 
coveries;" and on the 18th of August he 
moved in the Convention to insert among 
other powers * * To grant patents for useful in- 
ventions." 

If the provision was in the original draught, 
the Committee of Detail were not authorized 
to adopt it and did not; but the Conventioi;! 
did and it became a part of the Constitution. 
Pinckney was constantly nursing his draught, 
revising, amending, rearranging, and it is not 

271 



THE PINCKNEY DEAUGHT 

improbable that lie inserted this provision in 
one copy and neglected to insert it in the oth- 
ers. But he certainly seems to have been the 
author of it. From one point of view it may 
seem a needless Constitutional provision; for 
a national legislature could so legislate without 
it. But under the British Constitution mo- 
nopolies were a prerogative of the Crown, and 
a patent was deemed a monopoly. Pinckney 
therefore did wisely in expressly assigning 
patent-rights and copyrights to the legislative 
branch of the Government, giving to the mind- 
work of the inventor or author the character 
of property and the safeguard of the law. 

Another provision is the compromise relat- 
ing to slave representation. In the State De- 
partment draught it is provided that the num- 
ber of the delegates shall be regulated *^by the 
number of inhabitants'' (Art. 3) and that 
''the proportion of direct taxation shall be 
regulated by the whole number of inhabitants 
of every description.'' In the Observations 
he says that his plan contains a provision ''for 
empowering Congres^s to levy taxes upon the 
States, agreeable to the rule now in use, an 
enumeration of the white inhabitants, and 

272 



CONCLUSIONS ON THE WHOLE CASE 

three-fifths of other descriptions." In the 
Convention on the 12th of July, *'Mr. Pinck- 
ney moved to amend Mr. Eandolph's motion 
so as to make * blacks equal to the whites in the 
ratio of representation.' This he urged was 
nothing more than justice. The blacks are 
the labourers, the peasants of the Southern 
States: they are as productive of pecuniary 
resources as those of the Northern States. 
They add equally to the wealth, and, con- 
sidering money as the sinews of war, to the 
strength of the nation. It will also be politic 
with regard to the Northern States, as tax- 
ation is to keep pace with Eepresentation.'' 

This is conclusive as to Pinckney's views. 
It confirms the draught in the State Depart- 
ment and shows too that the copy of the 
draught on which the Observations were 
founded differed in this detail from the 
draught presented to the Convention. 

On a review of the entire case I have 
reached the following conclusions : 

1. The draught in the State Department 
agrees so closely with the draught of the Com- 
mittee of Detail, in form, in phraseology, in 
structure, in arrangement, in extent, in its be- 

273 



THE PINCKNEY DEAUGHT 

ginning and its ending tliat unquestionably the 

^ one draught must have followed the other. 

if There can be no middle ground here. 

2. With the uncovering of the Committee's 
draught and the bringing of the Observations 
into the case and the confirmatory matter in 
the Kandolph and Wilson draughts, it be- 
comes evident that the suspected fraud was an 
impossibility. That is to say, when Pinckney 
described in the Observations the draught 
which he was subsequently to present to the 
Convention he thereby described the draught 
which he was ultimately to place in the De- 
partment of State. In a word, if a fraud was 
perpetrated in 1818, it must have been begun 
in 1787, before the Convention met, which is 
a reductio ad absurdum. 

3, The Observations were printed and pub- 
lished during the lifetime of every member of 
the Convention, including the five members of 
the Committee of Detail, and Pinckney im- 
mediately republished them in the South 
Carolina State Gazette. In 1819 when the 
copy of the draught was published and circu- 
lated as a public document there were 16 mem- 
bers of the Convention still living, among 

274 



CONCLUSIONS ON THE WHOLE CASE 

whom was Madison, the chronicler of the Con- 
vention. 

It must therefore be held that Pinckney did ' 
not conceal anything or shrink from in- / 
vestigation; and that all which he did was ' 
done in dne time, in the light of day and in the 
most open manner. Indeed it may be asked 
whether there ever was an historical document 
which was so doubly published and declared 
both prior to and at the time when it 
was produced as the Pinckney draught; or 
which could have been so easily refuted, if it 
was really refutable? A court of justice in 
such a case would say, ''The plea of fraud is 
sustained by no evidence whatever. To allow 
a document which was placed in the files 
of the Government at the instance of a high 
officer of State to be attacked and discredited 
because of the doubts and suspicions of indi- 
viduals, no matter how eminent and intelligent, 
would be a monstrous abuse of authority which 
can not be upheld in either law or morals." 

4. A question may be raised as to whether 
the Journal of Madison can properly be ad- 
mitted as evidence against the claim of Pinck- 
ney ; and it must be conceded that Madison oe- 

275 



THE PINCKNEY DEAUGHT 

cupied the position of a controversialist ; that 
during the whole of the period of controversy 
his chronicle of the Convention was in his ex- 
clusive possession; and that it was within his 
power at any moment to obliterate parts or 
passages which, coming to the knowledge of 
the world, would weaken his own position and 
vindicate Pinckney and sustain the draught. 
But such a suggestion against the integrity of 
such a man is not to be lightly entertained. It 
is no more to be believed without evidence 
(and evidence of the most clear and unequivo- 
cal character) that Madison, for his own pur- 
poses, obliterated historical evidence, than 
that Pinckney fabricated it. Each was a 
member of the Congress of the Confederation ; 
each was a delegate to the great Convention; 
each was eminent for his zeal in the pro- 
longed and often hopeless work of framing the 
Constitution; each has left behind him a long 
record of distinguished public life. The one 
laboriously prepared the only draught of the 
Constitution that was made for the use of the 
Convention; and the other laboriously pre- 
pared the only chronicle of the framers' work 
which the world possesses. It is not for the 

276 



CONCLUSIONS ON THE WHOLE CASE 

bitterness of controversy, heedlessly, to assail 
such men. 

5. The Journal of Madison must be received 
as authentic history. At the same time it 
must be borne in mind that it was not written 
with the fulness and precision of the modern 
stenographer. Madison could not transcribe 
the words which a speaker uttered and leave 
us to ascertain the speaker 's meaning from his 
words. All that such a reporter could do was 
to record what he believed to be the speaker's 
meaning. It follows that condensed passages, 
isolated sentences, casual turns of expression 
cannot be used as admissions against Pinck- 
ney, and must be considered with disinterested 
caution, if they be considered at all. 

Time which destroys, also discloses; and 
time may bring to light some record which will 
change the conclusions of to-day. But as the 
case now stands it must be said that the Pinck- 
ney Draught in the Department of State is 
(with the exceptions before noted), all that 
Pinckney represented it to be. 



277 



CHAPTEE XVI 

OF PIKCKlSrEY PERSONALLY 

PINCKNEY was in the fourth generation 
of a family which had been distinguished 
for more than one hundred years for its public 
services. He had been elected to the provin- 
cial legislature of South Carolina before he 
had come of age; and he had made himself 
before the sitting of the Convention a promi- 
nent member of the Congress of the Confeder- 
ated States. He had a clearer apprehension 
of the actual needs of American nationality 
than any other member of the Convention. 
This may be seen in his Observations and in 
his speech of the 25th of June. There is a 
passage in that speech in which anticipating 
the Farewell Address of Washington and the 
peace policy of Jefferson he looks forward 
through the ensuing century of the Constitu- 
tion and depicts the practical blessings which 
it was to bring to the American people with a 
clearness and accuracy that is extraordinary: 

278 



OF PINCKNEY PEESONALLY 

'* Our true situation appears to me to be 
this — a new, extensive country, containing 
within itself the materials for forming a gov- 
ernment capable of extendng to its citizens all 
the blessings of civil and religious liberty — ca- 
pable of making them happy at home. This is 
the great end of republican establishments. 
We mistake the object of our government, if 
we hope or wish that it is to make us respect- 
able abroad. Conquests or superiority among 
other powers is not, or ought not ever to be, 
the object of republican systems. If they are 
sufficiently active and energetic to rescue us 
from contempt, and preserve our domestic 
happiness and security, it is all we can expect 
from them — it is more than almost any other 
government insures to its citizens." 

Pinckney's experience in the Congress of 
the Confederation made him despise the exist- 
ing Federal Government and undervalue the 
local authority of the States. He came into 
the Convention its most extreme Federalist — 
more so even than Hamilton. As he said in 
the Observations: 

''In the federal councils, each State ought 
to have a weight in proportion to its impor- 

279 



THE PINCKNEY DEAUGHT 
tance ; and no State is justly entitled to great- 



er. ' ' 



*^Tlie Senatorial districts into wHcli the 
Union is to be divided [in Ms plan] will be so 
apportioned as to give to each its due weight, 
and the Senate calculated in this as it ought to 
be in every government, to represent the 
wealth of the nation.'' 

^'The next provision [in his draught] is in- 
tended to give the United States in Congress, 
not only a revision of the legislative acts of 
each State, but a negative upon all such as 
shall appear to them improper." 

^^The idea that has been so long and falsely 
entertained of each being a sovereign State, 
must be given up; for it is absurd to suppose 
there can be more than one sovereignty within 
a government." 

*'Upon a clear and comprehensive view of 
the relative situation of the Union, and its 
members, we shall be convinced of the policy of 
concentring in the federal head a complete 
supremacy in the affairs of government." 

In the Convention Pinckney moved that the 
members of the lower House should be 
chosen by the legislatures ''of the several 

280 



OF PINCKNEY PERSONALLY 

States''; but this was the one thing which he 
conceded to ''the several States." The Sen- 
ate was to be chosen by the House of Del- 
egates ; and what is more significant, the Sen- 
ate was not to represent States, with the sav- 
ing clause, ''Each State shall be entitled to 
have at least one member in the Senate. ' ' Fi- 
nally he would strike an absolutely fatal blow 
at State sovereignty by providing, "the Leg- 
islature of the United States shall have the 
power to revise the Laws of the several States 
that may be supposed to infringe the powers 
exclusively delegated by this Constitution to 
Congress, and to negative and annul such as 
do." 

Knowing as we do of Pinckney's youth (he 
was not yet 30) and of Madison's poor opinion 
of him, it is desirable that we should know, if 
possible, what his contemporaries in the Con- 
vention thought of him. William Pierce the 
delegate from Georgia who has left to us the 
anecdote of Washington before quoted (p. 230) 
noted at the time his impressions of the lead- 
ing members of the Convention. From these 
I select his sketches of four of the young mem- 
bers of the Convention who had even then at- 

281 



THE PINCKNEY DEAUGHT 

tained distinction, Edmund Eandolph, Enfus 
King, Alexander Hamilton and Charles Pinck- 

ney: 

''Mr. Eandolph is Governor of Virginia — a 
young gentleman in whom nnite all the ac- 
complishments of the Scholar and the States- 
man. He came forward with the postnlata 
or first principles on which the Convention 
acted ; and he supported them with a force of 
eloquence and reasoning that did him great 
honor. He has a most harmonious voice, a 
fine person and striking manners. ' ' 

''Mr. King is a Man much distinguished for 
his eloquence and great parliamentary talents. 
He was educated in Massachusetts, and is said , 
to have good classical as well as legal knowl- 
edge. He has served for three years in the 
Congress of the United States with great and 
deserved applause, and is at this time high in 
the confidence and approbation of his Country- 
men. This Gentleman is about thirty-three 
years of age, about five feet ten Inches high, 
well formed, an handsome face, with a strong 
expressive Eye, and a sweet high toned voice. 
In his public speaking there is something pe- 
culiarly strong and rich in his expression, 

282 



OF PINCKNEY PEESONALLY 

clear, and convincing in his arguments, rapid 
and irresistible at times in Ms eloquence but 
he is not always equal. His action is natural, 
swimming, and graceful, but there is a rude- 
ness of manner sometimes accompanying it. 
But take him tout en semhle, he may with pro- 
priety be ranked among the Luminaries of the 
present age.'' 

* * Col. Hamilton is deservedly celebrated for 
his talents. He is a practitioner of the Law, 
and reputed to be a finished Scholar. To a 
clear and strong judgment he unites the orna- 
ments of fancy, and whilst he is able, convinc- 
ing, and engaging in his eloquence the Heart 
and Head sympathize in approving him. Yet 
there is something too feeble in his voice to 
be equal to the strains of oratory; — it is my 
opinion that he is a convincing Speaker, that 
(than) a blazing Orator. Col. Hamilton re- 
quires time to think, — he enquires into every 
part of his subject with the searchings of 
phylosophy, and when he comes forward he 
comes highly charged with interesting matter, 
there is no skimming over the surface of a sub- 
ject with him, he must sink to the bottom to 
see what foundation it rests on. — ^His lan- 

283 



THE PINCKNEY DEAUGHT 

guage is not always equal, sometimes didactic 
like Bolingbroke's, at others light and tripping 
like Sterne's. His eloquence is not so defnsive 
as to trifle with the senses, but he rambles 
just enough to strike and keep up the atten- 
tion. He is about 33 years old, of small stat- 
ure, and lean. His manners are tinctured 
with stiffness, and sometimes with a degree of 
vanity that is highly disagreeable. ' ' 

*^Mr. Charles Pinckney is a young Gentle- 
man of the most promising talents. He is, 
altho' only 24 [29] y's of age, in possession of 
a very great variety of knowledge. Govern- 
ment, Law, History and Phylosophy are his 
favorite studies, but he is intimately ac- 
quainted with every species of polite learning, 
and has a spirit of application and industry be- 
yond most Men. He speaks with neatness 
and perspicuity, and treats every subject as 
fully, without running into prolixity, as it re- 
quires. He has been a member of Congress, 
and served in that Body with ability and 
eclat." (William Pierce of Georgia; 3 Amer. 
Hist. Eeview, 313.) 

In this materialistic world of cause and ef- 
fect there sometimes seem to be recurring fa- 

284 



OF PINCKNEY PERSONALLY 

talities wMcli attend individuals that needless- 
ness lias not caused and that foresight could 
not have prevented — a fate of fire or flood or 
shipwreck, of good fortune or of bad fortune 
of successes or of casualties of escapes or of 
disasters — a fate that fastens upon an indi- 
vidual and cannot be shaken off. The fate as- 
signed to Pinckney seems to have been obliv- 
ion. Substantially everything which he prized 
is gone. His house was one of the finest in 
Charleston, if not the finest, and it was de- 
stroyed. He believed his library to be the 
most valuable library in the South and his 
great gallery to hold the rarest pictures in this 
country yet but a few volumes remain of the 
one and but two portraits of the other. His 
garden was the most beautiful in the State, 
it was his pride, his delight, and obliteration 
has indeed been its portion; even the soil 
which bore him flowers and shrubbery and 
trees and was laden with all the loveliness of 
semi-tropical vegetation is gone; for it was 
carried away during the Civil War to make 
military defenses. At the beginning of this 
investigation I began to search for the papers 
of which Pinckney speaks in his letter to the 

285 



THE PINCKKEY DEAUGHT 

Secretary of State — ^papers which might throw 
new light on the framing of the Constitution 
or solve the problem of the contents of the 
draught. In this search General McCrady, of 
Charleston kindly and sympathetically co-op- 
erated, but I soon received his assurance that 
the quest was not a new one for him, and that 
neither in the Historical Society of South Car- 
olina of which he was President nor in the pos- 
session of his friends could a document or pa- 
per or even a letter be found. At that time I de- 
sired to obtain a specimen of Pinckney's early 
handwriting and accordingly carried my pur- 
suit into the circle of his direct descendants; 
but the sad reply came from his great-grand- y 
son, Mr. Charles Pinckney of Claremont, 
• South Carolina that ^^ all of his papers and 
private manuscripts were destroyed in the 
great fire in Charleston in 1861," and that his . 
descendants possess *^no remains of his hand- 
writing except the autographs in his books." 
Letters and papers of eminent men are con- 
stantly coming to the light from unexpected 
hiding places and there is the official corre- 
spondence in the State Department and papers 
may exist in the public offices of South Caro- 

286 



OF PINCKNEY PEESONALLY 

lina, but apart from these, my investigation 
stops at a point where it mnst be said that not 
so much as a single line of the writing of 
Charles Pinckney now exists. 

In 1787 while Pinckney was in the full pos- 
session of his youthful power and fortune and 
all those things which give a man a prestige 
above his fellows, fate seems to have leaned 
forward and touched the instrument which 
was the supreme work of his life, the Draught 
of the Constitution of the United States — and 
to have set a seal upon the lips of every man 
who could testify as to its contents. If ever 
there was a paper of which it might be pre- 
dicted that it would survive its time and be se- 
curely kept, that was the paper. The Conven- 
tion was composed of the most orderly, care- 
taking and reputable of men, and the author 
of the draught was one of them. The com- 
mand of the Convention was that its papers 
should be preserved. The papers were placed 
in the custody of the most scrupulous of men 
and by him transferred to the official guard- 
ianship of a department of the Government, 
and there we might expect to find the draught 
of Pinckney; but fate had touched the great 

287 



THE PINCKNEY DEAUGHT 

State paper, and we find only that it liad van- 
ished mysteriously from the earth. 



The following biographical sketch is by Mr. 
Wm. S. Elliott, of South Carolina, a grand 
nephew of Pinckney : 

^^In the diploma, by which the degree of 
Doctor of Laws was conferred upon him by 
the University of Princeton, New Jersey, it is 
expressly declared, that it 4s conferred on ac- 
count of high acquirements, learning and 
ability, and particularly for his distinguished 
services in Congress and the Federal Conven- 
tion.' From 1787 to 1789, he was traveling 
on the Continent and on his return, was 
elected Governor of the State. While Govern- 
or, he was a delegate to, and made president 
of the State Convention for forming the Con- 
stitution. In 1791 he was chosen a second 
time, and in 1796 a third time. Governor of the 
State ; in 1798 a Senator in Congress, where he 
remained until 1801, when Mr. Jefferson ap- 
pointed him Minister Plenipotentiary to Spain, 
with power to treat for the purchase of Louis- 
iana and Florida. On his return in 1806, he 
was a fourth time honored with the position of 

288 



OF PINCKNEY PERSONALLY 

Governor of the State, and he is the only citi- 
zen who has been so frequently elevated to the 
executive chair. From this period he retired 
from public life, until in 1818, when he was 
elected under great party excitement to the 
United States House of Representatives by 
Charleston District, and he here closed his 
political life with his speech in opposition to 
the Missouri Compromise. 

^^ Family tradition and genealogical history 
are the very reverse of amber, which, itself 
a valuable substance, usually includes trifles; 
whereas, these trifles being in themselves very 
insignificant and trifling do, nevertheless, 
serve to perpetuate a great deal of what is 
rare and valuable in ancient manners, and to 
record many curious and minute facts, which 
could have been preserved and conveyed 
through no other medium. 

^^ Charles Pinckney professed an exquisite 
appreciation of the beautiful in nature and in 
art. His collection of paintings, statuettes, 
medals, etc., rendered his house almost a mu- 
seum. His fine library, occupying an entire 
suite of three large rooms — the floors and 
windows of which were kept richly carpeted 

289 



THE PINCKNEY DEAUGHT 

and curtained, while the ceilings were deco- 
rated with classic representations— is sup- 
posed to have contained near twenty thousand 
of the rarest and choicest books, collected from 
every part of the Continent, and in every lan- 
guage spoken in the enlightened world." 

Thomas Pinckney, 

who settled in South Carolina in 1687, 

was the father of 

(2) (3) 

William, Thomas. 

Master in Chancery. 

His Son, 

Col. Chas. Pinckney. 

His Son, 

Governor Charles Pinckney. 

His Son, 

Hon. Henry L. Pinckney. 

'^A life of Charles Pinckney was prepared 
and in the possession of the Hon. Henry L. 
Pinckney for revision and addition; with it 
were his valuable papers. The fire of 1861, 
which desolated the city of Charleston, de- 
stroyed almost everything, and this, and the 
former essay, are compiled from many stray 

290 



OF PINCKNEY PEESONALLY 

notes, mutilated manuscripts and a few pa- 
pers, still in our possession. 

*^A very strange and melancholy feeling 
overtakes us as we search the remains of 
Charles Pinckney. Here is a man upon whom 
Heaven appears to have showered its gifts. 
Distinguished in ancestry, possessing fine in- 
tellect, vigorous health, and large fortune, 
with his political ambition fully gratified, of 
refined tastes and cultivation, linking his 
name successfully and eminently, with his day 
and his race, and yet, here are his memorials 
in a few tattered bits of paper, scarcely deci- 
pherable. His ashes are in the family bury- 
ing ground. The spot is known. No stone, 
however, marks his final resting-place. His 
house in Charleston years ago, passed into 
the hands of the stranger, and has been torn 
down. The very earth has been removed, and 
now forms one of the fortifications of White 
Point Battery, erected during the late war for 
the defense of the city of Charleston. The 
library is broken and scattered. The picture 
of Lady Hamilton^ and his own portrait, are 
the only two that we know of that remain 
of his once splendid gallery. The beautiful 

291 



THE PINCKNEY DEAUGHT 

grounds of ^'Fee Faem'' have disappeared, 
and the plough runs its furrows through the 
grove, and the grave-yard.'' DeBow's Ee- 
view, April 2, 1866. 



292 



APPENDIX 



293 



APPENDIX 

Mr. Charles Pinckney's Draught op a Federal 

Government 

We the people of the States of New Hampshire 
Massachusetts Khode Island & Providence Planta- 
tions — Connecticut New York New Jersey Penn- 
sylvania Delaware Maryland Virginia North Caro- 
line South Carolina & Georgia do ordain declare 
& establish the following Constitution for the Gov- 
eiaament of Ourselves and Posterity. 

Article 1: 

The Stile of This Government shall be The United 
States of America & The Government shall consist 
of supreme legislative Executive and judicial 
Powers — 

2 

The Legislative Power shall be vested in a Con- 
gress To consist of Two separate Houses — One to be 
called The House of Delegates & the other the 
Senate who shall meet on the day of in 

every Year 

3 

The members of the House of Delegates shall be 
chosen every Year by the people of the several 

295 



APPENDIX 

States & the qualification of the electors shall be 
the same as those of the Electors in the several 
States for their legislatures— each member shall 
have been a citizen of the United States for 
Years— shall be of Yea of age & a resident of 

the State he is chosen for — until a census of the 
people shall be taken in the manner herein after 
mentioned the House of Delegates shall consist of 
to be chosen from the different states in the 
following proportions — for New Hampshire, 
for Massachusetts for Rhode Island . for 

Connecticut. for New York for New Jersey, 
for Pennsylvania. for Delaware for 

Maryld for Virginie. for North Caroline 

for South Carolina . for Georgia . & the 

Legislature shall hereafter regulate the number of 
delegates by the number of inhabitants according 
to the Provisions hereinafter made, at the rate of 

one for every thousand all money bills of 

every kind shall originate in the house of Delegates 
& shall not be altered by the Senate — The House 
of Delegates shall exclusively possess the power of 
impeachment & shall choose its own Officers & Va- 
cancies therein shall be supplied by the Executive 
authority of the State in the representation from 
which they shall happen — 



The Senate shall be elected & chosen by the House 
of Delegates which House immediately after their 
meeting shall choose by ballot Senators from 

among the Citizens & residents of New Hampshire. 

296 



THE PINCKNEY DRAUGHT 

from among those of Massachusetts. from 
among those of Rhode Island. from among 
those of Connecticut. from among those of New 
York. from among those of New Jersey from 
among those of Pennsylvanie from among those 
of Delaware — from among those of Maryland, 
from among those of Virginia from among 
those of North Caroline from among those of 
South Caroline & from among those of Georgia — 

The Senators chosen from New Hampshire Mas- 
sachusetts Ehode Island & Connecticut shall form 
one class — those from New York. New Jersey Penn- 
sylvanie & Delaware one class — & those from Mary- 
land Yirginie North Caroline South Caroline & 
Georgia one class — 

The House of Delegates shall number these 
Classes one two three & fix the times of their serv- 
ice by Lot — the first Class shall serve for Years 
— the second for Years & the third for 

Years — as their Times of service expire the House 
of Delegates shall fill them up by Elections for 
Years & they shall fill all Vacancies that arise from 
death or resignation for the Time of service re- 
maining of the members so dying or resigning — 

Each Senator shall be years of age at leest 

— shall have been a Citizen of the United States at 
4 Years before his Election & shall be a resident 
of the state he is chcsen from— 

The Senate shall choose its own Officers 



297 



APPENDIX 
5 

Each State shall prescribe the time & manner 
of holding Elections by the People for the house of 
Delegates & the Honse of Delegates shall be the 
judges of the Elections returns & Qualifications of 
their members 

In each house a Majority shall constitute a Quo- 
rum to do business — Freedom of Speech & Debate 
in the legislature shall not be impeached or Ques- 
tioned in any place out of it & the Members of 
both Houses shall in all cases except for Treason 
Felony or breach of the Peace be free from arrest 
during their attendance at Congress & in going 
to & returning from it — both houses shall keep 
journals of their Proceedings & publish them 
except on secret occasions & the yeas and nays 
may be entered thereon at the desire of one of 

the members present. 

Neither house without the consent of the other 
shall adjourn for more than days nor to any 

Place but where they are sitting. 

The members of each house shall not be eligible 
to or capable of holding any office under the Union 
during the time for which they have been respec- 
tively elected nor the members of the Senate for one 
Year after — 

The members of each house shall be paid for their 
services by the State's which they represent— 

Every bill which shall have passed the Legis- 
lature shall be presented to the President of the 
United States for his revision— if he approves it he 
shall sign it— but if he does not approve it he 

298 



^V"' 



THE PINCKNEY DRAUGHT 

shall return it with his objections to the house it 
originated in, which house if two thirds of the 
members present, notwithstanding the Presidents 
objections agree to pass it, shall send it to the other 
house with the Presidents Objections, where if two 
thirds of the members present also agree to pass it, 
the same shall become a law — & all bills sent to the 
President & not returned by him within days 
shall be laws unless the Legislature by their ad- 
journment prevent their return in which case they 
shall not be laws. 

6th 

The Legislature of the United States shall have 
the power to lay & collect Taxes, Duties, Imposts 
& Excises 

To regulate Commerce with all nations & among 
the several states — 

To borrow money & emit bills of Credit 

To establish Post Offices 

To raise armies 

To build & equip Fleets 

To pass laws for arming organising & disciplining 
the Militia of the United States — 

To subdue a rebellion in any state on application 
of its legislature 

To coin money & regulate the Value of all coins 
& fix the Standard of weights & measures 

To provide such Dock Yards & arsenals & erect 
such fortifications as may be necessary for the 
United States, & to exercise exclusive Jurisdiction 
therein 



299 



APPENDIX 

To appoint a Treasurer by ballott 

To constitute Tribunals inferior to the Supreme 

Court 

To establish Post & military roads 

To establish and provide for a national Univer- 
sity at the Seat of the Government of the United 
States — 

To establish uniform rules of Naturalization 

To provide for the establishment of a Seat of Gov- 
ernment for the United States not exceeding 
miles square in which they shall have exclusive 
jurisdiction 

To make rules concerning Captures from an 
Enemy 

To declare the law & Punishment of piracies & 
felonies at sea & of counterfeiting Coin & of all 
offences against the Laws of Nations 

To call forth the aid of the Militia to execute the 
laws of the Union enforce treaties suppress insur- 
rections & repel invasions 

And to make all laws for carrying the foregoing 
powers into execution. — 

The Legislature of the United States shall have 
the Power to declare the Punishment of Treason 
which shall consist only in levying War against the 
United States or any of them or in adhering to 
their Enemies.— No person shall be convicted of 
Treason but by the Testimony of two "Witnesses.— 

The proportions of direct Taxation shall be regu- 
lated by the whole number of inhabitants of every 
description which number shall within Years 

after the first meeting of the Legislature & within 
the term of every Years after be taken in 

300 



THE PINCKNEY DRAUGHT 

the manner to be prescribed by the legislature 

No tax shall be laid on articles exported from 
the States — nor capitation tax but in proportion to 
the Census before directed 

All laws regulating Commerce shall require the 
assent of two thirds of the members present in each 
house — 

The United States shall not grant any title of 
Nobility — 

The Legislature of the United States shall pass no 
Law on the subject of Religion, nor touching or 
abridging the Liberty of the Press nor shall the 
Privilege of the Writ of Habeas Corpus ever be sus- 
pended except in case of Rebellion or Invasion 

All acts made by the Legislature of the United 
States pursuant to this Constitution & all Trea- 
ties made under the authority of the United States 
shall be the Supreme Law of the Land & all Judges 
shall be bound to consider them as such in their 
decisions 



The Senate shall have the sole and exclusive power 
to declare war & to make treaties & to appoint Am- 
bassadors & other Ministers to Foreign nations & 
Judges of the Supreme Court 

They shall have the exclusive power to regulate 
the manner of deciding all disputes & Controver- 
sies now subsisting or which may arise between the 
States respecting Jurisdiction or Territory 



301 



/ 
/ 



APPENDIX 

8 

The Executive Power of the United States shall 
be vested in a President of the United States of 
America which shall be his stile & his title shall be 

His Excellency He shall be elected for 

Years & shall be reeligible 

He shall from time give information to the 
Legislature of the state of the Union & recom- 
mend to their consideration the measures he may 
think necessary — he shall take care that the laws 
of the United States be duly executed: he shall 
commission all the Officers of the United States 
& except as to Ambassadors other ministers & 
Judges of the Supreme Court he shall nominate 
& with the consent of the Senate appoint all other 
Officers of the United States — He shall receive pub- 
lic Ministers from foreign nations & may cor- 
respond with the Executives of the different states — 
He shall have power to grant pardons and reprieves 
except in impeachments — He shall be commander in 
chief of the army & navy of the United States & 
of the Militia of the several states, & shall receive 
a compensation which shall not be increased or di- 
minished during his continuance in office — At Enter- 
ing on the Duties of his office he shall take an Oath 
to faithfully execute the duties of a President of 
the United States — He shall be removed from his 
office on impeachment by the house of Delegates & 
Conviction in the supreme Court of Treason bribery 
or Corruption — In case of his removal death resig- 
nation or disability The President of the Senate shall 
exercise the duties of his office until another Presi- 

302 



THE PINCKNEY DEAUGHT 

dent be chosen — & in case of the death of the 
President of the Senate the Speaker of the House 
of Delegates shall do so 

9 

The Legislature of the United States shall have 
the Power & it shall be their duty to establish 
such Courts of Law Equity & Admiralty as shall 
be necessary — the Judges of these Courts shall hold 
their Offices during good behavior & recieve a 
compensation which shall not be increased or dimin- 
ished during their continuance in office — One of 
these Courts shall be termed the Supreme Court 
whose Jurisdiction shall extend to all cases arising 
under the laws of the United States or affecting 
ambassadors other public Ministers & Consuls — 
To the trial of impeachments of Officers of the United 
States — To all cases of Admiralty & maritime juris- 
diction — In cases of impeachment affecting Am- 
bassadors and other public Ministers the Jurisdic- 
tion shall be original & in all the other cases appel- 
late- 
All Criminal offences (except in cases of im- 
peachment) shall be tried in the state where they 
shall be committed — ^the trial shall be open & pub- 
lic & be by Jury — 

10 

Immediately after the first census of the people 
of United States the House of Delegates shall 
apportion the Senate by electing for each State out 
of the Citizens resident therein one Senator for 

303 



APPENDIX 

every members such state shall have in the 
house of Delegates— Each State however shall be en- 
titled to have at least one member in the Senate 

11 

No State shall grant Letters of marque & reprisal 
or enter into treaty or alliance or confederation 
nor grant any title of nobility nor without the Con- 
sent of the Legislature of the United States lay 
any impost on imports — ^nor keep Troops or Ships 
of War in Time of peace — ^nor enter into compacts 
with other states or foreign powers or emit bills 
of Credit or make anything but Gold Silver or Cop- 
per a Tender in payment of debts nor en- 
gage in War except for self defence when actually 
invaded or the danger of invasion is so great as 
not to admit of delay until the Government of 
the United States can be informed thereof — & to 
render these prohibitions effectual the Legislature 
of the United States shall have the power to revise 
the laws of the several states that may be sup- 
posed to infringe the Powers exclusively delegated 
by the Constitution to Congress & to negative & an- 
nul such as do 

12 

The Citizens of each state shall be entitled to all 
privileges & immunities of Citizens in the several 
states — 

Any person charged with Crimes in any 
State fleeing from Justice in another shall on de- 
mand of the Executive of the State from which 

304 



THE PINCKNEY DRAUGHT 

he fled be delivered up & removed to the State 
having jurisdiction of the Offence — 

13 

Full faith shall be given in each State to the 
acts of the Legislature & to the records & judicial 
Proceedings of the Courts & Magistrates of every 
State 

14 

The Legislature shall have power to admit new 
States into the Union on the same terms with the 
original States provided two thirds of the members 
present in both houses agree 

15 

On the application of the legislature of a State 
the United States shall protect it against domestic 
insurrections 

16 

If Two Thirds of the Legislatures of the States 
apply for the same The Legislature of the United 
States shall call a Convention for the purpose of 
amending the Constitution — Or should Congress 
with the Consent of Two thirds of each house pro- 
pose to the States amendments to the same — the 
agreement of Two Thirds of the Legislatures of the 
States shall be sufficient to make the said amend- 
ments Parts of the Constitution 

The Katifications of the Conventions 

of States shall be sufficient for organiz- 

ing this Constitution. — 

305 



DEAUGHT OF THE COMMITTEE OF DETAIL. 

We the People of the States of New Hampshire, 
Massachusetts, Rhode-Island, and Providence Plan- 
tations, Connecticut, New York, New Jersey, Penn- 
sylvania, Delaware, Maryland, Virginia, North- 
Carolina, South-Carolina, and Georgia, do ordain, 
declare and establish the following Constitution 
for the Government of Ourselves and our Posterity. 

Article I 

The stile of this Government shall be, *'The 
United States of America." 

II 

The Government shall consist of supreme legis- 
lative, executive and judicial powers. 

Ill 

The legislative power shall be vested in a Con- 
gress, to consist of two separate and distinct bodies 
of men, a House of Representatives, and a Senate ; 
each of which shall in all eases, have a negative on 
the other. The Legislature shall meet on the first 
Monday in December in every year. 

306 



THE COMMITTEE'S DE AUGHT 
IV 

Sect. 1. The Members of the House of Repre- 
sentatives shall be chosen every second year, by the 
people of the several States comprehended within 
this Union. The qualifications of the electors shall 
be the same, from time to time, as those of the 
electors in the several States, of the most numerous 
branch of their own legislatures. 

Sect. 2. Every Member of the House of Repre- 
sentatives shall be of the age of twenty-five years 
at least; shall have been a citizen in the United 
States for at least three years before his election; 
and shall be, at the time of his election, a resident 
of the State in which he shall be chosen. 

Sect. 3. The House of Representatives shall, at 
its first formation, and until the number of citizens 
and inhabitants shall be taken in the manner herein 
after described, consist of sixty-five Members, of 
whom three shall be chosen in New Hampshire, 
eight in Massachusetts, one in Rhode-Island and 
Providence Plantations, five in Connecticut, six m 
New York, four in New Jersey, eight in Pennsyl- 
vania, one in Delaware, six in Maryland, ten in Vir- 
ginia, five in North-Carolina, five in South-Carolma, 
and three in Georgia. 

Sect. 4. As the proportions of numbers m 
the different States will alter from time to time; 
as some of the States may hereafter be divided; as 
others may be enlarged by addition of territory; as 
two or more States may be united; as new States 
will be erected within the limits of the United 
States, the Legislature shall, in each of these cases, 

307 



APPENDIX 

regulate the number of representatives by the num- 
ber of inhabitants, according to the provisions 
herein after made, at the rate of one for every forty 
thousand. 

Sect. 5. All bills for raising or appropriating 
money, and for fixing the salaries of the officers of 
government, shall originate in the House of 
Representatives, and shall not be altered or amended 
by the Senate. No money shall be drawn from the 
public Treasury, but in pursuance of appropria- 
tions that shall originate in the House of Repre- 
sentatives. 

Sect. 6. The House of Representatives shall 
have the sole power of impeachment. It shall 
choose its Speaker and other officers. 

Sect. 7. Vacancies in the House of Representa- 
tives shall be supplied by writs of election from the 
executive authority of the State, in the representa- 
, tion from which they shall happen. 

V 

Sect. 1. The Senate of the United States shall 
be chosen by the Legislatures of the several States. 
Each Legislature shall chuse two members. Va- 
cancies may be supplied by the Executive until the 
next meeting of the Legislature. Each member 
shall have one vote. 

Sect. 2. The Senators shall be chosen for six 
years; but immediately after the first election they 
shall be divided, by lot, into three classes, as nearly 
as may be, numbered one, two and three. The 

308 



THE COMMITTEE'S DEAUGHT 

seats of the members of the first class shall be va- 
cated at the expiration of the second year, of the 
second class at the expiration of the fourth year, 
of the third class at the expiration of the sixth year, 
so that a third part of the members may be chosen 
every second year. 

Sect. 3. Every member of the Senate shall be 
of the age of thirty years at least; shall have been 
a citizen in the United States for at least four years 
before his election; and shall be, at the time of his 
election, a resident of the State for which he shall 
be chosen. 

Sect. 4. The Senate shall chuse its own Presi- 
dent and other officers. 

VI 

Sect. 1. The times and places and the manner of 
holding the elections of the members of each House 
shall be prescribed by the Legislature of each State ; 
but their provisions concerning them may, at any 
time, be altered by the Legislature of the United 
States. 

Sect. 2. The Legislature of the United States 
shall have authority to establish such uniform 
qualifications of the members of each House, with 
regard to property, as to the said Legislature shall 
seem expedient. 

Sect. 3. In each House a majority of the mem- 
bers shall constitute a quorum to do business; but 
a smaller number may adjourn from day to day. 

Sect. 4. Each House shall be the judge of the 

309 



APPENDIX 

elections, returns and qualifications of its own mem- 
bers. 

Sect. 5. Freedom of speech and debate in the 
Legislature shall not be impeached or questioned 
in any court or place out of the Legislature; and 
the members of each House shall, in all cases, ex- 
cept treason, felony and breach of the peace, be 
privileged from arrest during their attendance at 
Congress, and in going to and returning from it. 

Sect. 6. Each House may determine the rules 
of its proceedings ; may punish its members for dis- 
orderly behaviour; and may expel a member. 

Sect. 7. The House of Representatives, and the 
Senate, when it shall be acting in a legislative ca^ 
pacity, shall keep a journal of their proceedings, 
and shall, from time to time, publish them : and the 
yeas and nays of the members of each House, on 
any question, shall, at the desire of one-fifth part 
of the members present, be entered on the journal. 

Sect. 8. Neither House, without the consent of 
the other, shall adjourn for more than three days 
nor to any other place than that at which the two 
Houses are sitting. But this regulation shall not 
extend to the Senate, when it shall exercise the pow- 
ers mentioned in the article. 

Sect. 9. The members of each House shall be 
ineligible to, and incapable of holding any office 
under the authority of the United States, during 
the time for which they shall respectively be elected : 
and the members of the Senate shall be ineligible 
to, and incapable of holding any such office for one 
year afterwards. 

Sect. 10. The members of each House shall re- 

310 



THE COMMITTEE'S DRAUGHT 

ceive a compensation for their services, to be ascer- 
tained and paid by ,the State, in which they shall be 
chosen. 

Sect. 11. The enacting stile of the laws of the 
United States shall be. "Be it enacted, and it is 
hereby enacted by the House of Representatives, 
and by the Senate of the United States, in Congress 
assembled. ' ' 

Sect. 12. Each House shall possess the right of 
originating bills, except in the cases beforemen- 
tioned. 

Sect. 13. Every bill, which shall have passed 
the House of Representatives and the Senate, shall, 
before it become a law, be presented to the Presi- 
dent of the United States for his revision: if, upon 
such revision, he approve of it, he shall signify his 
approbation by signing it: But if, upon such re- 
vision, it shall appear to him improper for being 
passed into a law, he shall return it, together with 
his objections against it, to that House in which it 
shall have originated, who shall enter the objections 
at large on their Journal, and proceed to reconsider 
the bill. But, if after such reconsideration, two 
thirds of that House shall, notwithstanding the ob- 
jections of the President, agree to pass it, it shall, 
together with his objections, be sent to the other 
House, by which it shall likewise be reconsidered, 
and, if approved by two thirds of the other House 
also, it shall become a law. But, in all such cases, 
the votes of both Houses shall be determined by 
Yeas and Nays; and the names of the persons vot- 
ing for or against the bill shall be entered in the 
Journal of each House respectively. If any bill 

311 



APPENDIX 

shall not be returned by tbe President within seven 
days after it shall have been presented to him, it 
shall be a law, unless the Legislature, by their ad- 
journment, prevent its return ; in which case it shall 
not be a law. 

VII 

Sect, 1. The Legislature of the United States 
shall have the power to lay and collect taxes, duties, 
imposts and excises; 

To ren^ulate commerce with foreign nations, and 
among the several States; 

To establish an uniform rule of naturalization 
throughout the United States ; 

To coin money ; 

To regulate the value of foreign coin; 

To fix the standard of weights and measures; 

To establish post-offices; 

To borrow money, and emit bills on the credit 
of the United States; 

To appoint a Treasurer by ballot; 

To constitute tribunals inferior to the supreme 
court; 

To make rules concerning captures on land and 
water; 

To declare the law and punishment of piracies 
and felonies committed on the high seas; and the 
punishment of counterfeiting the coin of the United 
States, and of offences against the law of nations; 

To subdue a rebellion in any State, on the appli- 
cation of its Legislature; 

312 



THE COMMITTEE'S DRAUGHT 

To make war; 

To raise armies; 

To build and equip fleets; 

To call forth the aid of the militia, in order to 
execute the laws of the Union, enforce treaties, sup- 
press insurrections, and repel invasions; 

And to make all laws that shall be necessary and 
proper for carrying into execution the foregoing 
powers, and all other powers vested, by this Con- 
stitution, in the government of the United States, or 
in any department or officer thereof. 

Sect. 2. Treason against the United States shall 
consist only in levying war against the United 
States, or any of them, and in adhering to the ene- 
mies of the United States, or any of them. The 
Legislature of the United States shall have power 
to declare the punishment of treason. No person 
shall be convicted of treason, unless on the testimony 
of two witnesses. No attainder of treason shall 
work corruption of blood, nor forfeiture, except 
during the life of the person attainted. 

Sect. 3. The proportions of direct taxation shall 
be regulated by the whole number of white and 
other free citizens and inhabitants, of every age, 
sex and condition, including those bound to servi- 
tude for a term of years, and three fifths of all 
other persons not comprehended in the foregoing 
description, (except Indians not paying taxes) 
which number shall, within six years after the first 
meeting of the Legislature, and within the term of 
every ten years afterwards, be taken in such man- 
ner as the said Legislature shall direct. 

313 



/ 



APPENDIX 

Sect. 4. No tax or duty shall be laid by the 
Legislature on articles exported from any State; 
nor on the migration or importation of such persons 
as the several States shall think proper to admit; 
nor shall such migration or importation be pro- 
hibited. 

Sect. 5. No capitation tax shall be laid, unless in 
proportion to the census hereinbefore directed to 
be taken. 

Sect. 6. No navigation act shall be passed with- 
out the assent of two thirds of the members present 
in each House. 

Sect. 7. The United States shall not grant any 
title of nobility. 

VIII 

The acts of the Legislature of the United States 
made in pursuance of this Constitution, and all 
treaties made under the authority of the United 
States shall be the supreme law of the several 
States, and of their citizens and inhabitants; and 
the judges in the several States shall be bound 
thereby in their decisions ; anything in the Consti- 
tutions or laws of the several States to the contrary 
notwithstanding. 

Villi 

Sect. 1. The Senate of the United States shall 
have power to make treaties, and to appoint am- 
bassadors and judges of the supreme court. 

Sect. 2. In all disputes and controversies now 

314 



THE COMMITTEE'S DRAUGHT 

subsisting, or that may hereafter subsist between 
two or more States, respecting jurisdiction or ter- 
ritory, the Senate shall possess the following pow- 
ers. Whenever the Legislature, or the Executive 
authority, or the lawful agent of any State, in con- 
troversy with another, shall, by memorial to the 
Senate, state the matter in question, and apply for 
a hearing; notice of such memorial and application 
shall be given, by order of the Senate, to the Legis- 
lature or the Executive Authority of the other State 
in controversy. The Senate shall also assign a day 
for the appearance of the parties, by their agents, 
before that House. The agents shall be directed to 
appoint, by joint consent, commissioners or judges 
to constitute a court for hearing and determining the 
matter in question. But if the agents cannot agree, 
the Senate shall name three persons out of each of 
the several States, and from the list of such persons 
each party shall alternately strike out one, until 
the number shall be reduced to thirteen; and from 
that number not less than seven nor more than 
nine names, as the Senate shall direct, shall, in their 
presence, be drawn out by lot; and the persons, 
whose names shall be so drawn, or any five of them 
shall be commissioners or judges to hear and finally 
determine the controversy; provided a majority of 
the judges, who shall hear the cause, agree in the 
determination. If either party shall neglect to at- 
tend at the day assigned, without shewing sufficient 
reasons for not attending, or, being present, shall 
refuse to strike, the Senate shall proceed to nom- 
inate three persons out of each State, and the clerk 

315 



APPENDIX 

of the Senate shall strike in behalf of the party 
absent or refusing. If any of the parties shall re- 
fuse to submit to the authority of such court; or 
shall not appear to prosecute or defend their claim 
or cause, the court shall nevertheless proceed to 
pronounce judgment. The judgment shall be final 
and conclusive. The proceedings shall be trans- 
mitted to the President of the Senate, and shall be 
lodged among the public records for the security 
of the parties concerned. Every commissioner shall, 
before he sit in judgment, take an oath, to be ad- 
ministered by one of the judges of the supreme or 
superior court of the State where the cause shall be 
tried, "well and truly to hear and determine the 
matter in question, according to the best of his judg- 
ment, without favour, affection, or hope of reward. ' 
Sect. 3. All controversies concerning lands 
claimed under different grants of two or more 
States whose jurisdictions, as they respect such 
lands, shall have been decided or adjusted subse- 
quent to such grants, or any of them, shall, on ap- 
plication to the Senate, be finally determined, as 
near as may be, in the same manner as is before 
prescribed for deciding controversies between dif- 
ferent States. 



Sect 1. The Executive Power of the United 
States shall be vested in a single person. His stile 
shall be, "The President of the United States of 
Ameca;" and his title shall be, "His Excellency '\ 
He shall be elected by ballot by the Legislature. 

316 



THE COMMITTEE'S DRAUGHT 

He shall hold his office during the term of seven 
years; but shall not be elected a second time. 

Sect. 2. He shall, from time to time, give in- 
formation to the Legislature, of the State of the 
Union: he may recommend to their consideration 
such measures as he shall judge necessary, and ex- 
pedient: he may convene them on extraordinary 
occasions. In case of disagreement between the two 
Houses, with regard to the time of adjournment, he 
may adjourn them to such time as he shall think 
proper: he shall take care that the laws of the 
United States be duly and faithfully executed: he 
shall commission all the officers of the United 
States; and shall appoint officers in all cases not 
otherwise provided for by this Constitution. He 
shall receive Ambassadors, and may correspond 
with the Supreme Executives of the several States. 
He shall have power to grant reprieves and par- 
dons; but his pardon shall not be pleadable in bar 
of an impeachment. He shall be Commander in 
Chief of the Army and Navy of the United States, 
and of the Militia of the several States. He shall, 
at stated times, receive for his services, a compen- 
sation, which shall neither be increased nor dimin- 
ished during his continuance in office. Before he 
shall enter on the duties of his department, he 
shall take the following Oath or Affirmation, /'I 
solemnly swear, (or affirm) that I will 
faithfully execute the Office of President of the 
United States of America." He shall be removed 
from his office on impeachment by the House of 
Representatives, and conviction in the Supreme 

317 



APPENDIX 

Court, of treason, bribery, or corruption. In case 
of his removal as aforesaid, death, resignation, or 
disability to discharge the powers and duties of his 
office, the President of the Senate shall exercise 
those powers and duties until another President 
of the United States be chosen, or until the disability 
of the President be removed. 

XI 

Sect. 1. The Judicial Power of the United States 
shall be vested in one Supreme Court, and in such 
Inferior Courts as shall, when necessary, from time 
to time, be constituted by the Legislature of the 
United States. 

Sect. 2. The Judges of the Supreme Court, and 
of the Inferior courts, shall hold their offices during 
good behaviour. They shall, at stated times, re- 
ceive for their services, a compensation, which shall 
not be diminished during their continuance in of- 
fice. 

Sect. 3. The Jurisdiction of the Supreme Court 
shall extend to all cases arising under laws passed 
by the Legislature of the United States ; to all cases 
affecting Ambassadors, other Public Ministers and 
Consuls ; to the trial of impeachments of Officers of 
the United States; to all cases of Admiralty and 
Maritime Jurisdiction; to Contriversies between 
two or more States (except such as shall regard 
Territory or Jurisdiction) between a State and 
citizens of another State, between citizens of dif- 
ferent States, and between a State or the citizens 
thereof and foreign States, citizens or subjects. In 

318 



THE COMMITTEE'S DE AUGHT 

cases of Impeachment, cases affecting Ambassadors, 
other Public Ministers and Consuls, and those in 
which a State shall be a party, this Jurisdiction 
shall be original. In all the other cases before 
mentioned it shall be appellate, with such excep- 
tions and under such regulations as the Legislature 
shall make. The Legislature may assign any part 
of the jurisdiction above mentioned (except the 
trial of the President of the United States) in the 
manner and under the limitations which it shall 
think proper, to such Inferior Courts as it shall 
constitute from time to time. 

Sect. 4. The trial of all criminal offences (except 
in cases of impeachments) shall be in the State 
where they shall be committed; and shall be by 
jury. 

Sect. 5. 'Judgment, in cases of Impeachment, 
shall not extend further than to removal from office, 
and disqualification to hold and enjoy any office of 
honour, trust or profit under the United States. 
But the party convicted shall nevertheless be liable 
and subject to indictment, trial, judgment and pun- 
ishment, according to law. 

XII 

No State shall coin money; nor grant letters of 
marque and reprisal ; nor enter into any treaty, alli- 
ance, or confederation ; nor grant any title of nobil- 
ity. 

XIII 

No State, without the consent of the Legislature 

319 



APPENDIX 

of the United States, shall emit bills of credit, or 
make anything but specie a tender in payment of 
debts; lay imposts or duties on imports; nor keep 
troops or ships of war in time of peace; uor enter 
into any agreement or compact with another State, 
or with any foreign power ; nor engage in any war, 
unless it shall be actually invaded by enemies, or 
the danger of invasion be so imminent, as not to 
admit of a delay, until the Legislature of the United 
States can be consulted. 

XIIII 

The citizens of each State shall be entitled to all 
privileges and immunities of citizens in the several 
States. 

XV 

Any person charged with treason, felony, or high 
misdemeanor in any State, who shall flee from 
justice, and shall be found in any other State, shall, 
on demand of the Executive Power of the State 
from which he fled, be delivered up and removed 
to the State having jurisdiction of the offence. 

XVI 

Full faith shall be given in each State to the acts 
of the Legislatures, and to the records and judicial 
proceedings of the courts and magistrates of every 
other State. 

XVII 

New States lawfully constituted or established 

320 



THE COMMITTEE'S DRAUGHT 

within the limits of the United States, may be ad- 
mitted, by the Legislature, into this government; 
but to such admission the consent of two thirds of 
the Members present in each House shall be neces- 
sary. If a new State shall arise within the limits 
of any of the present States, the consent of the 
Legislatures of such States shall be also necessary 
to its admission. If the admission be consented to, 
the new States shall be admitted on the same terms 
with the original States. But the Legislature may 
make conditions with the new States concerning the 
public debt, which shall be then subsisting. 

XVIII 

The United States shall guaranty to each State a 
Republican form of government; and shall protect 
each State against foreign invasions, and, on the 
application of its Legislature, against domestic vio- 
lence. 

XVIIII 

On the application of the Legislatures of two 
thirds of the States in the Union, for an amend- 
ment of this Constitution, the Legislature of the 
United States shall call a Convention for that pur- 
pose. 

XX 

The Members of the Legislatures, and the execu- 
tive and judicial officers of the United States, and 
of the several States, shall be bound by oath to 
support this Constitution. 

321 



APPENDIX 

XXI 

^ The ratification of the Conventions of 

States shall be sufficient for organizing this Con- 
stitution. 

XXII 

This Constitution shall be laid before the United 
States in Congress assembled, for their approbation ; 
and it is the opinion of this Convention, that it 
should be afterwards submitted to a Convention 
chosen in each State, under the recommendation of 
its legislature, in order to receive the ratification of 
such Convention. 

XXIII 

To introduce this government, it is the opinion of 
this Convention, that each assenting Convention 
should notify its assent and ratification to the 
United States in Congress assembled ; that Congress, 
after receiving the assent and ratification of the 
Conventions of States, should appoint 

and publish a day, as early as may be, and appoint 
a place for commencing proceedings under this 
Constitution; that after such publication, the Leg- 
islatures of the several States should elect Members 
of the Senate, and direct the election of Members 
of the House of Representatives ; and that the Mem- 
bers of the Legislature should meet at the time and 
place assigned by Congress, and should, as soon as 
may be, after their meeting, choose the President 
of the United States, and proceed to execute this 
Constitution. 

322 



INDEX 



323 



INDEX 



Adams, Secretary J. Q. 

Applies to Pinckney for 

draught, p. 4, 26 
Interview with Kutus King, 
p. 145 
Ambassadors 

To be appointed by the 
Senate, p. 82, 102, 210 
Article III of Pinckney's 
Draught 
Relied upon by Madison, 
p. 61, 62, 93, 99, 100 
Article V of Pinckney's 
Draught 
Relied upon by Madison, 
p. 61, 101 
Article VIII of Pinckney's 
Draught 
Relied upon by Madison, 

p. 60, 78, 79, 82, 84, 97 
Sustained by the Observa- 
tions, p. 134 



Bancroft, George, 

Expresses the general judg- 
ment, p. 7 
Bill of Rights 

Not adopted by the Com- 
mittee or the convention, 
p. 270 
But is , in Pinckney's 
draughts and Observa- 
tions, p. 270 
Bridge which Madison built 
For Pinckney's friends, p. 
6, 7, 21, 44 
Butler Pierce of South Caro- 
lina 
Thinks election by the peo- 
ple impracticable, p. 87 ' 

325 



Charges of Madison 

Analysed, p. 58, 62, 63 
Chesapeak, the frigate. 
Surrender of, p. 56 
Citizens. 

The clause securing privi- 
leges a.nd immunities, p. 
252 
City Tavern, 

Members of the Convention 
dinner at, p. 239 
Committee of Detail 

Appointed to prepare the 
Constitution, p. 69, 232 

Renort of the Committee, 
p. 69 

Names of the Committee, 
p. 75 

Secrecy of the Committee, 
p. 75, 76 

Report exceeds instruc- 
tions, p. 70 

Consistent silences of the 
Committee until death, 
p. 200 

How the Committee fol- 
lowed Pinckney, p. 213 

The printing of the 
draught, p. 233, 234 
Committee of Stvle 

Appointed, p. 69 

Really Committee of Re- 
vision, p. 78 

Correction of language, 
masterly, p. 78 
Compensation of Members 

Adequate, p. 173 

Resolution of the Commit- 
tee of the Whole, p. 173 

Report of the committee of 
detail, p. 174 



THE PINCKNEY DRAUGHT 



In the Pinckney and Wil- 
son draughts, p. 175 
Deviation from instructions 
explained, p. 207, 209 
Compensation of the Presi- 
dent. 
Committee's draught disre- 
gards the 12th Resolu- 
tion, p. 209 
Follows Pinckney 's 
draught, p. 210 
Compromises, The, of the 
Constitution. 
Neither ]\Iadison nor Pinck- 
ney attempted a compro- 
mise, p. 265 
Conclusions. 

Final conclusions on the 
whole case, p. 273 
Confederated States 

Bankrupt and drifting to- 
wards war, p. 249 
Helpless as against the 

States, p, 251 
Dependent upon voluntary 

contributions, p. 265 
Could not enforce treaties 
on States, p. 265 
Congress. 

See Election and Eligibility. 
Constitution, The. 

Its four germinal stages, p. 

66 
Methods for consideration 

of, p. 67, 68 
Birth of, p. 71 
Eeferences to Committees, 

p. 69, 70, 78 
The work of the Committee 

of Style, p. 78 
Estimate of in 1818, p. 25, 
27 
Convention, The. 

Surviving members of, p. 

24, 202 
Philosophical methods of, 

p. 67 
First days of the, p. 128, 
129, 130 



The first business day, p. 
135 

The secrecy of the conven- 
tion, p. 227, 229, 232, 237 

A lost paper, p. 230 

Its careful preservation of 
papers, p. 287 
Copyright and Patents 

Not in the Department 
copy of the draught, p. 
271 

But Pinckney the author of 
those constitutional pro- 
visions, p. 271 

Copyright cases, p. 206 
Council of Revision 

Considered, p. 46, 47, 50, 51 

Pinckney 's action regard- 
ing it, p. 50 

Delicate. 

The word as used by Mad- 
ison, p. 36 
Draught of Committee of De- 
tail 

Reported by committee, p. 
70 

Description of, p. 71, 72, 
234 

Washington's copy of, p. 74 

The notes by Major Jack- 
son, p. 74 

Agreement with Pinckney's 
draught, p. 79, 81, 255, 
273 

The " divide " in the march 
of the framers, p. 76 

The compromises subse- 
quent to the draught, p. 
77 

Sparks' analysis of it, p. 
149 

Sparks' test, p. 153, 156 

Madison's non-reply to 
Sparks, p. 155, 156 

The misplacing of veto 
power, p. 183, 220 

The treason provisions, p. 
185, 221 



326 



INDEX 



The Supreme Court juris- 
diction clause, p. 191 

The draught not yet writ- 
ten, p. 203 

The preamble taken from 
Pinckney, p. 214 

How the committee fol- 
lowed Pinckney, p. 215 

The committee overrule 
Wilson, p. 222 

Limit of time for prepar- 
ing, p. 232, 235, 248 

Engrossed on Pinckney's as 
copy for printer, p. 236, 
241 

" Delivered in " figurative- 
ly, p. 236 

The most important docu- 
ment of the convention, 
p. 226 

Printing of the draught, p. 
233 

The real authors of the 
draught, p. 165 
Draught of Pinckney 

Presented to the conven- 
tion, p. 429 

Lost, p. 4, 224 

The Department copy, p. 4 

Description of, p. 16 

Madison's Note to the, p. 
58 

When written, p. 86 

The term, " The law of the 
land," p. 179 

Provisions described in the 
Observations, p. 182 

The misplacing of the veto 
power, p. 183, 220 

The militia, p. 188 

Randolph recognizes and 
uses, Art 11, p. 196 

Article 11 described in the 
Observations, p. 198 

Publicity attending Pinck- 
ney's draught, p. 201, 
274 

Used as printers' copy and 
destroyed, p. 236 



Never discussed in conven- 
tion, p. 257 
Exaggerated value set upon 

it, p. 258 
Provisions not adopted by 

the committee, p. 268 
Provisions not in the De- 
partment case, p. 271 
Provisions rejected, p. 263 
Its inferiority in detail to 
the committee's, p. 153 
Draught of Randolph. 
Description of, p. 161 
The annotations of Rut- 
ledge, p. 164 
Compensation of Senators, 

p. 163 
The joint work of Ran- 
dolph and Rutledge, p. 
165 
A disheveled draught, p. 

190 
Jurisdiction of the Supreme 

Court in, p. 191 
Recognizes and uses Pinck- 
ney's Art. 11, p. 196 
Draughts of Wilson. 

His three draughts, p. 160 
Description of his 3d, p. 

161 
The annotations of Rut- 
ledge, p. 161 
Wilson's preamble, p. 166, 
Charges against Pinckney, 

p. 168 
The word "our," p. 169, 

171 
Articles which are not Wil- 
son's, p. 182 
The proper placing of the 

veto power, p. 183, 220 
The treason provisions, p. 

185, 221 
The militia provisions, p. 
188 
Draught, rough. 
What it is, p. 20 
Pinckney's not a rough 
draught, p. 10, 11 



327 



THE PINCKNEY DRAUGHT 



Wilson's rough draught, p. 

166 
Duer, William A. 

Madison's letter to, p. 36, 

45 
His position in New York, 

p. 45 

Election of Representatives 

By the people, p. 9, 85, 91, 
93, 94, 95, 97 

Pinckney's change of mind, 
p. 85, 87, 94, 96 

Agreement of Articles III 
and V with Observa- 
tions, p. 90, 93, 

Vote of convention, p. 95 
Election of the President. 

Madison's strictures on the 
draught, p. 60 

Article VIII does not pro- 
vide a method, p. 97 

The omission not remarka- 
ble, p. 98 

Choosing by the electoral 
colleges, p. 77, 133 

Observations sustain Arti- 
cle VIII, p. 134 
Eligibility of Representatives, 
etc. 

Pinckney on the question, 
p. 101, 103 
Elliott, W. S. 

A grandnephew of Pinck- 
ney, p. 288 

His sketch of Pinckney's 
life and home; of his li- 
brary, picture gallery 
and garden, p. 288 
Ellsworth, Oliver 

Did not draught a constitu- 
tion, p. 165 

Contributed nothing to 
draught of the commit- 
tee, p. 165 
Estoppel. 

Characterized by Coke, p. 



132 



Does not extend to histor- 
ical students, p. 132 
Federalists. 

Hamilton and Pinckney 
were, p. 279 

Pinckney the most extreme 
federalist in the conven- 
tion, p. 279 
Ford, Worthington C, 

Publishes Pinckney's letter, 
p. 5 , 
Framers of the Constitution. 

Two of the youngest and 
their work, p. 264 
Franklin, Doctor. 

His farewell words to the 
convention, p. 70 
Fraud and Plagiarism. 

The question of inexorable, 
p. 21 

Detection probable, p. 24 

Temptation small, p. 25 

The absence of motive, p. 
27, 28 _ 

Specifications of plagia- 
risms, p. 78 

Failure of specified charges, 
p. 79 

Not sustained by evidence, 
p. 275 

The charge reduced to an 
absurdity, p. 195 

Gerry of Massachusetts 

Opposes election by the peo- 
ple, p. 87 
Gilpin, Henry D., 

Edits Madison's Journal, p. 
5, 29 
Gorham of Massachusetts. 
A member of the committee 

of detail, p. 75 
Did not attempt to draught 
a constitution, p. 165 
Grimke, Thomas S. 

Madison's letter to, p. 35 
Habeas Corpus. 
The writ of, not to be sus- 



328 



INDEX 



pended is in the draught, 

p. 269 
Why the committee did not 

adopt, p. 270 
Hamilton, Alexander. 

" Those who pay are the 

masters," p. 174 
His not the style of the 

Constitution, p. 243 
Pierce's description of 

Hamilton, p. 283 
Historical Questions 

Concerning the draught in 

the State Department, p. 

12 
Historical Society of N. Y. 
Possesses Pinckney's Ob- 
servations, p. 105 
Referred to by Madison, 

p. 110 
Hunt, Gaillard. 

Description of the draught, 

p. 18 

Immigration. 

Expected and relied upon, 

p. 170 
Massachusetts constitution 

encourages, p. 169 
Impeachment. 

In Pinckney draught, p. 

211 
In the committee draught, 

p. 211 
Jackson, Major Wm. 

Elected secretary of the 

convention, p. 129 
His notes on draught, p. 

74, 75 
His letter to Washington, 

p. 239 
Delivers papers of the con- 
vention to Washington, 

p. 239, 241 

Jameson, Professor, J. Frank- 
lin. 
He discovers two of the 



Wilson draughts, p. 159, 

160 
Jay, Chief Justice. 

His hand appears in the 

constitution of New 

York, p. 243 
Jefferson, President. 

Madison's letter to, p. 33, 

129 
Jews. 

" The people called Jews " 

address the convention, 

p. 241 
Journal, The, of Madison. 
Its completeness, p. 40 
Omission of Pinckney's 

draught, p. 40 
Publication of, p. 52, 63 
His best appreciated work, 

p. 40 
To be edited by Mrs. Mad- 
ison, p. 63 
Edited by Henry D. Gilpin, 

p. 5, 29 
Madison method of writing, 

p. 122 
Is the journal evidence 

against Pinckney, p. 275 
It must be received as his- 
tory, p. 277 

King, Rufus. 

Mr. Adams' conversation 
with King, p. 145 

King considered as a wit- 
ness, p. 146 

Pierce's description of 
King, p. 282 
Knox, General Henry. 

Washington's letter to him, 
p. 128 

Law of the Land. 

See Supreme Law of the 
Land. 
Library company of Philadel- 
phia. 
Order to the librarian di- 



329 



THE PINCKNEY DEAUGHT 



recting him to " furnish 
the gentlemen " of the 
convention with books, p. 
240 
McLaughlin, Professor, 

Discovers a draught of Wil- 
son, p. 158 

Discovers report in confed- 
erated congress, August, 
1786, "written in Pinck- 
ney's own hand," p. 260 
Madison, President. 

His troubled life, p. 54 

His failing memory, p. 52, 
54, 81 

His only alternative, p. 38 

His age, p. 53, 54 

His failure to testify, p. 38 

His ignorance of the 
draught, p. 30, 38, 40, 53 

His " Note " to the " Plan," 
p. 58 

His " editorial footnote " to 
the "Note," p. 62, 63 

His charges against the 
draught, p. 63 

His objections to Pinck- 
ney's draught, p. 5, 6, 7, 
43, 45, 46 

His poor opinion of Pinck- 
ney, p. 32, 53 

Most diligent member of 
convention, p. 80 

His letters, p. 33, 34, 35, 36, 

42, 43, 45, 54, 63, 107, 
108, 109, 110, 129, 214 

His comparison of the 
draught with the Consti- 
tution, p. 143, 156, 157 

His silence on the primary 
issue, p. 156 

His adroit management, p. 

43, 157 

Madison on the "object of 
the Union," p. 214 

His and Pinckney's the con- 
structive minds of the 
convention, p. 264 



They agreed as to State 
legislation, p. 265, 267 

They did not attempt to 
frame a compromise, p. 
266 

The work of one agrees 
with the work of the 
other, p. 267 

Their names should be 
closely associated, p. 268 
Madison's Journal. See Jour- 
nal. 
Mrs. Madison 

Her rescue of Washing- 
ton's portrait, p. 56 

Intended editor of the 
Journal, p. 63 
Marshall, Chief Justice. 

Moulded the Constitution, 
p. 27 

His majestic judicial reign, 
p. 37 
Martin Luther. 

His resolution relating to 
the " Supreme law of the 
respective States," p. 179 

His language a compro- 
mise, p. 181 
Massachusetts 

Constitution furnishes pro- 
visions for Pinckney's 
draught, p. 83, 84, 250 
Massachusetts and New York 
alone paid in full their 
quota, p. 249 

Preamble of the Constitu- 
tion derived from con- 
stitution of Massachu- 
setts, p. 169 

The word " posterity " un- 
restricted, p. 170 
Meigs, William M. 

His "Growth of the Con- 
stitution," p. 161 

Reproduces the Randolph 
draught in facsimile, p. 
161 

Growth of the Constitution 



330 



INDEX 



cited and quoted, p. 189, 
192 
Militia, The. 

Pinckney's draught a radi- 
cal departure, p. 188 

Not authorized by the con- 
vention, p. 188 

Pinckney's draught fol- 
lowed by Wilson rejected 
by the committee, p. 189 
Money Bills. 

Madison refers to them, p. 
99 

Pinckney's position regard- 
ing them, p. 100 
Morris, Gouverneur. 

His correction of the lan- 
guage of the Constitution, 
p. 78 
Mystery. 

The name, p. 1 

Its definition, p. 2 
New York, the Constitution 
of. 

Furnishes the veto power, 
p. 47, 48 

Furnishes other provisions, 
p. 83, 84, 216, 218, 250 

New York and Massachu- 
setts alone pay in full 
their quota, p. 249 

Notes and Memoranda 

Of Pinckney and Madison, 

p. 11 
"Note" of Madison to 

plan of Pinckney, p. 58 
Editorial footnote to same, 

p. 62, 63 

Observations, The Pamphlet. 
Cited by Madison, p. 33, 

34, 43, 46, 50, 62 
Cited by Pinckney, p. 90 
When written, p. 93, 130 
Description of, p. 105 
Madison interest in, p. 107 
Extracts from, p. Ill 



The Observations, a speech 
never made, p. 122, 126, 
139 

Madison and Yates evi- 
dence, p. 122 

Contradictions in it, p. 126 

Significant error in date, p. 
127 

Considered as a speech, p. 
131 

Considered as evidence, p. 
132 

Confirm Articles III, V, 
VIII, p. 132, 135 

Explanation of Pinckney's 
publication, p. 135 

Why speech was not deliv- 
ered, p. 137 

Why published, p. 138 

Why Observations were not 
cited in Madison's 
"Note," p. 140 

Tlie Observations fateful, 
p. 141 

They sustain the copy in 
the State department, p. 
139 

Articles in the draught de- 
scribed in the Observa- 
tions cannot be ques- 
tioned, p. 182, 189, 198, 
253, 269, 270 

Article 11 referred to by 
Randolph described in 
the Observations, p. 198 

Patents. See Copyright. 
Paulding, James Kirke. 

Memorandum for, p. 34, 

42, 107 
Letters to, p. 43, 108 
Friend of Madison, p. 44, 
45 
Phenomenon, The, of Madi- 
son, p. 46, 53, 80 
Pinckney, Charles. 
His official life, p. 23 
His age, p. 88 



331 



THE PINCKNEY DRAUGHT 



Why lie presented the Ob- 
servations, p. 135 
His strategic purpose, p. 

137 

Why he published the Ob- 
servations, p. 138, 142 

Desired the supremacy of 
the national government, 
p. 181, 279 

He alone formulated a con- 
stitution before the con- 
vention met, p. 189 

His misplacement of the 
veto power, p. 183 

The style of the Constitu- 
tion, p. 243, 245 

His draught the only one, 
p. 249 

His method of construc- 
tion, p. 250 

His composite work, p. 
250, 251, 252 

His generality of treatment 
and expression, p. 253 

A condemned and misrepre- 
sented man, p. 254 

His training and prepara- 
tion, p. 261, 264 

What he did and failed to 
do, p. 261 

His co-operation with Mad- 
ison, p. 264, 265, 267 

His family, position, etc., p. 
278 

His speech of June 25, p. 
278 

The extremist federalist 
in the convention, p. 279 

Pierce's description and es- 
timate of him, p. 281, 
284 

The destruction of every- 
thing which Pinckney 
possessed, p. 285 
Pinckney, Charles Cotes- 
worth, 

Opposes election by the 

people, p. 88 
Proposes that no salary be 



332 



allowed to Senators, p. 
176 

Living in 1818, p. 24 

The most esteemed citizen 
in S. C, p. 88 
Pinckney's Letters 

To Secretary of State, p. 8, 
12, 26, 27 

Contemporary declaration, 
p. 10 

Letter to Madison, p. 62 
Pierce, William. 

His narrative of a lost pa- 
per in the convention, p. 
230 

His description of Ran- 
dolph, King, Hamilton 
and Pinckney, p. 281 
Preamble of the Constitution. 

Suggested by the Articles of 
Confederation, p. 169. 

Derived from Constitution 
of Massachusetts, p. 169 

Randolph attempted 
draught of preamble, p. 
162 

Wilson attempted draught 
of preamble, p. 166 

The preamble in the com- 
mittee's draught, p. 168 

It declared the source and 
supremacy of authority, 
p. 213 

Ignored State governments, 
p. 213 

The preamble unquestioned 
in the convention, p. 215 
President, The. 

See Election of. 
Printers — Copy. 

Pinckney draught used as 
printers' copy. p. 188, 
208, 237 



Randolph, Edmund, 

The Virginia resolutions 

cited as his, p. 68 
Opens the main business of 



INDEX 



the convention, p. 130, 

136 
His draught of the Consti- 
tution, p. 158, 161 
Read, George. 

Letter to Dickinson on 

Pinckney's draught, p. 89 
Ritchie, Thomas. 
' Madison's letter to, p. 63 
Rutledge, John. 

Present in the convention, 

May 29, p. 135 
Se(3onds Pmcbney motion 

to strike out the word 

people and insert Legis- 
. latures, p. 95 
Chairman of the Committee 

of Detail, p. 75 
" Delivers in " the report of 

the committee, p. 70 
His annotations on the 

other draughts, p. 162, 

164, 182 
He co-operates with Wilson 

and Randolph, p. 164 
Used Pinckney draught 

when annotating, p. 182 
His ruthless slashing of 

Wilson's, p. 161 
His 43 amendments, p. 161, 

204 
Strongest man in the State, 

p. 88 



Secrecy. 

The resolution of the con- 
vention, p. 228 

Secrecy to continue after 
the dissolution of the 
convention, p. 228 

Silence of members from 
May 29 to September 17, 
p. 229 

Washington recognition of 
the obligation, p. 229 

The obligation required 
that the draught be not 
lost, p. 232 I 

Pinckney draught used as 1 

333 



printers' copy and scru- 
pulously destroyed, p. 
237 
Legal presumption that it 

was destroyed, p. 237 
Secrecy of Committee of 
Detail, p. 75, 200, 237 
Senate. 

Pinckney's Senate, p. 91, 

217 
To appoint ambassadors 
and judges, p. 102 
South Carolina. 

The State postpones action 
in the convention, p. 175 
South Carolina Gazette. 

Draught republished in, p. 
274 
Sparks, Jared. 

Writes to Madison, p. 42, 

43, 144, 146, 147, 149 
Madison to Sparks, p. 35, 

42, 43, 110 
His opinion of the draught, 

148, 152 
His correct analysis, p. 152 
His most delicate test, p. 
153 
Story, Mr. Justice. 

Ignores the Draught, p. 6, 
8, 12 
" Supreme Law of the Land." 
History of the term, p. 179. 
The case of Trevatt v. 
Weeden gives judicial 
significance to it, p. 182 
Derived from resolution of 
Congress, p. 251 



Thomson, Doctor William H. 

Definition of mystery, p. 2 
Time. 

The second condition im- 
posed on the committee, 
p. 232 

Two of these days were 
Sundays, p. 233 

Three days required for 
printing, p. 234 



THE PINCKNEY DRAUGHT 



200 constitutional provi- 
sions framed and printed 
within the limited time, 
p. 234 
Treason. 

The punishment of treason, 

P- 185 . ^, 

How defined, etc., m the 

three draughts, p. 186 

Caution of Rutledge and 
Pinckney, p. 186 

Their provisions combined 
in the Constitution, p. 
187 
The Treaty Making Power. 

Lodged in the Senate ex- 
clusively, p. 210 

Not authorized by the con- 
vention, p. 211 

Committee of detail fol- 
lowed Pinckney errone- 
ously, p. 211 

Veto Power, The. 

Taken from the constitution 

of New York, p. 47 
Misplaced by Pinckney and 

by the committee, p. 183, 

220 
Correctly placed by Wilson, 

p. 183 

Washington, General, The. 
Madison's letters to, p. 33, 

34 
His copy of the committee's 

draught, p. 74 
Letter to Congress, p. 54 
His illness, and the illness 

of his mother, p. 128 
His journey to Fredericks- 
burg, p. 128 
His arrival in Philadelphia, 

p. 129 
President of the convention, 

p. 129 
Letter to General Knox, p. 

128 



Made custodian of the rec- 
ords, p. 228, 239 

His sense of the obligation 
of secrecy, p. 229 

Extracts from his diary, p. 
229 

His admonition to the con- 
vention, p. 230 

The convention's daily 
mark of respect, p. 230 

Extracts from his diary of 
September 17, p. 239 
Washington, City. 

Capture of, 56 

Burning of the Capitol, p. 
56 
Wilson, James. 
His draughts of the Consti- 
tution, p. 158 

Intelligent and wise, p. 159 

Opposed the payment of 
representatives bv the 
States, p. 175, 176" 

His proper treatment of the 
veto power, p. 183 

His careful and logical 
work, p. 165, 187 

Alien member of the con- 
vention, p. 199 

A judge of the Supreme 
Court, p. 200 

The hard-worker of the 
convention, p. 204 

A signer of the Declara- 
tion, p. 171 

He first suggests the Elec- 
toral Colleges, p. 77 



Yates, Robert. 

Entry in his minutes, p. 
29, 122 

Report of Pinckney's 
speech, p. 30 

His age, position and ex- 
perience, p. 124 

Value of his minutes, p. 
125 



334 



LIBRARY OF CONGRESS 




